People v. Bowen, 19 How. Pr. 289

People v. Bowen

19 How. Pr. 289 | N.Y. Sup. Ct. | 1859

Sutherland, J.

This is an action in the nature of a quo warranto, against the defendants, for assuming to be,, and acting as a corporation, without authority of law. The complaint alleges that the defendants have associated themselves together and claim to be a corporation, and are unlawfully acting as a corporation, under an alleged act of the legislature of the state *25of New York, entitled “ An act to incorporate the Metropolitan Gras Light Company of the City of New York,” passed April 17, 1855 ; but further alleges, that although the bill of said alleged act passed the assembly on the 5th day of April, 1855, and the senate on the 13th day of April, 1855, yet it was not approved of, or signed by the governor, until the 17th day of April, 1855; and that the legislature adjourned without day on the 14th day of April, 1855, and was never thereafter in session during that year. By an averment of the complaint, the act in question (Sess. Laws of 1855, p. 1039) is made a part of the complaint.

By section one of the act, James Bowen and others, (the defendants in this action,) and their present and future associates, are created, constituted and declared to be a body corporate and politic, by the name of!£ The Metropolitan Gas Light Company of the City of New York,” with authority to lay their pipes in the streets &c., for the purpose of conducting gas, &c.; but this can only be done upon obtaining the permission of the two boards of the common council of said city. The complaint further alleges, that in the month of June, 1855, the defendants, pretending to act as a corporation, under the name of " The Metropolitan Gas Light Company of the City of New York,” presented their petition to the board of councilmen of the city of New York, praying for permission to lay conductors through the streets &c., for the purpose of conducting gas through the same. That on the 12th day of September of the same year, the board of councilmen passed a resolution granting such peimission, but that on the 8th day of December, 1856, the board of aldermen non-concurred, and the resolution was lost. That on the 20th day of December, 1858, the said board of councilmen passed a resolution granting such permission, which resolution is set out in the complaint, and that such resolution was concurred in by the board of aldermen on the 27th day of December, 1858.

The complaint insists that the defendants and their asso*26ciates are not a corporation, and have no right to act and assume the franchises of a corporation :

First. Because the act of incorporation was not approved by the governor until after the adjournment of the legislature, and for this reason failed to become a law.

Second. That, if approved by the governor so as to be a law, the act is unconstitutional and void in its purposes and provisions.

Third. That the said corporation did not commence the transaction of its business within one year from the date of its incorporation, and has not yet commenced the transaction of its business, and that thereby its corporate powers (if it ever had any) have ceased. The prayer for relief is, that the act may be adjudged to be in violation of the constitution of this state, and null and void; and that the defendants may be adjudged to unlawfully assume and usurp the franchises of being a corporation, and to act as a corporation without legal authority or right.

To this complaint the defendants have demurred generally, on the ground that 'the complaint does not state facts sufficient to. constitute a cause of action. From this statement it will be seen that three questions are raised by the demurrer: .

First. Can the governor approve and sign a bill, so as to make it a law, after the final adjournment of the legislature ?

Second. Is the act in question unconstitutional and void, if duly passed.and approved by the governor so as to make it a law if otherwise constitutional ?

Third. Does the act in question contain any special provision or provisions, which relieve the corporation, thereby intended to be created, from the provision of the revised statutes, (1 B. S. 600, § 7,) requiring corporations thereafter created, to organize and commence the transaction of their business within one year from the date of their incorporation; or if created subject to this provision of the revised statutes, did this corporation in fact commence the transaction of its business within one year from the date of its incorporation ? Can a bill *27passed by a majority merely, become a law by the approval and signature of the governor, after the adjournment of the legislature; or, to become a law, must it have such approval and signature during the session of the legislature ?

By section 1 of article 3 of the constitution, it is provided that “ the legislative power of this state shall be vested in a senate and assembly.” By section 14 of the same article the enacting clause of all bills shall be, “ The. people of the state of blew York, represented in senate and assembly, do enact as follows.” And no law shall be enacted except by bill. By section 15 of the same article, “No bill shall be passed unless by a majority of all the members elected to each branch of the legislature, and the question upon the final passage shall be taken immediately Upon its last reading, and the yeas and nays entered on the journal.” By section 9 of article 4, it is provided “ that every bill, which shall have passed the senate and assembly, shall, before it becomes a law, be presented to the governor. If he approves, he shall sign it; but if not, he shall return it, with his objections, to that house in which it shall have originated, who shall enter the objection at large on their journal, and proceed to reconsider it. If, after such reconsideration, two-thirds of the members present shall agree to pass the bill, it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered, and, if approved by two-thirds of all the members present, it shall become a law, notwithstanding the objections of the governor. But, in all such cases, the votes of both houses shall be determined by yeas and nays; and the names of the members voting for and against the bill shall be entered on the journal of each house respectively. If any bill shall not be returned by the governor within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the legislature shall, by their adjournment, prevent its return, in which case it shall not be a law.”

These provisions amount to a constitutional definition, and *28the result is, I think, that the governor may approve and sign a hill after the adjournment of the legislature, so that the hill which otherwise would not he a law, becomes a law by his approval and signature. The constitution makes the distinction between a bill and a law; it defines the legislative power to be the power to pass bills subject to the qualified negative of the governor; it carefully separates the legislative from the executive power, and carefully excludes the executive power or right of approving or objecting to the bill from the legislative power. By the constitution, this power of approval and of objection is not a legislative, but an executive revisory act, implying in its exercise time, examination, judgment. I think that from the careful exclusion of this revisory right or power by constitutional definition froto the legislative powers, and from the general provision in the ninth section of article four, that “ every bill that shall have passed the senate and assembly shall, before it becomes a law, be presented to the govern- or.—if he approve, he shall sign it,” without the specification of any time or period for the performance of this executive act or duty, it follows that a bill may become a law by the executive approval and signature after the adjournment of the legislature.

By the ninth section, every bill shall be presented to the governor for his approval or objections; and there are two ways in which the bill may become a law during the session of the legislature—‘with his approval and without his approval. If he signs the bill, his signature is evidence of his approval; if he retains the bill ten days without returning it, &c., “ the same shall become a law in like manner as if he had signed it that is, you may say, that the constitution makes such retention for ten days, evidence of his approval; but the legislature may adjourn before the expiration of the ten days, and thus prevent the return of the bill; in which case, says the constitution, “ it (that is, any bill which shall not have been returned by the governor to the legislature before their adjournment) shall not be a law that is, by the governor’s, retention of it *29for ten days, or “ in like manner as if he had signed,” or, in other words, without his signature. If the governor approve and sign the hill after the adjournment of the legislature, their adjournment did not prevent the return of it. Does it follow, because a bill cannot, after the adjournment of the legislature, become a law without the signature of the governor, that it cannot with his signature P In case the governor approve the bill, what relieves him from the plain injunction of the constitution, that if he approve the bill, “ he shall sign it ?” This right and power of approval or of disapproval is discretionary, free, and entirely withrut constitutional limitation or control; but every bill shall be presented to the governor, and it is plainly his constitutional duty to examine every bill; such an examination implies an approval or disapproval; if he approves, “ he shall sign it.” What is there in the constitution, relieving the governor from his general duty of examining every bill passed, or which limits his exercise in point of time to the actual session of the legislature ? I see nothing.

All public officers, and all departments of government, are to be presumed to act from public motives, and within the sphere of their constitutional duties; all bills passed by the legislature, therefore, are to be presumed to be constitutional and for the public good; they might not be—hence the veto check; but if a law authorized by the constitution is called for by the public interest, why should not the bill embodying it, approved of by the governor, become a law by his signature, although the legislature may have adjourned without giving him time for examination ? Why should the adjournment of the legislature deprive the public of the law P the governor being always at hand to examine, and, if he approves, to sign. “ Every bill which shall have passed the senate and assembly, shall, before it becomes a law, be presented to the governor; if he approves, he shall sign it,” says the first part of section nine of article four. The remainder of the section is a provision for the contingency of his not approving the bill. The yeto power calls for time and examination. The legislature *30have a right to make the bill a law, notwithstanding the objections. The legislature cannot exercise this right without being in session. There should be no unnecessary delay in passing laws. The ten days for the return of the bill is fixed by this section, with reference to all these considerations. The requirement that the bill shall be returned to the house in which it originated, with the objections, is for the benefit of the legislature, and in furtherance of their right to re-pass the bill by a two-third vote; and if they choose to adjourn, and waive this right, before the expiration of the ten days, why should that affect the general right and duty of the governor to sign all bills which he approves ? The statement of his objections is for the benefit of the legislature; and, therefore, after they have adjourned, if the governor does not approve the bill, he simply abstains from putting his name to it.

Conceding the construction of these provisions of the constitution to be doubtful, so that considerations of public convenience or public policy can properly be resorted to, I am of the opinion that the strength of the argument, drawn from such considerations, is decidedly in favor of the construction giving the right in question to the governor. It is said, if the governor can sign bills after the adjournment of the legislature, to which the constitutional limitation of ten days does not apply, there being no time fixed for his examination or signature, if he approves, that he might sign at any time during the interval between the adjournment and the next session, or even at any time during his term of office. To this I answer that, the legislature having adjourned, there was no need of fixing a time as to them; and as to the public at large, whether the bill becomes a law depends entirely upon the governor’s signature; whether he shall or shall not approve and sign, is wholly at his discretion. Is it extraordinary that the constitution, leaving the fate of the bill after the adjournment of the legislature wholly at the discretion of the governor, should also leave somewhat at his discretion the time at or within which such discretion is to be exercised ? *31I say somewhat at his discretion, because there is necessarily implied in the constitutional enjoinment of every public official duty, without, express limitation as to time, an injunction and a constitutional responsibility for its performance, as soon as the occasion for the performance arises, and the nature of the duty and other duties of equal importance will permit. What executive duty is more momentous than the examination, judgment and conclusion implied in the exercise of this revisory veto power; and if the legislature adjourns, leaving bills, under the provisions of the constitution, wholly at the executive discretion, what duty should or is more likely sooner to claim his attention ? What motive, except what may be called “ vis inertice,” has the governor for delay ? Men are generally willing to do what they approve of. If the governor approves the bill, why should he delay signing it ? If he does not approve, he will leave the bill unsigned, without any other constitutional" accountability for his determination to sign or not to sign, than attaches to every other executive act or determination, to wit, for the honesty of its motive.

There being, therefore, no motive for unnecessary delay, the framers of the constitution did not apprehend any public inconvenience from delay in the executive action after the adjournment of the legislature; nor do I see any risk of any other or further delay than might arise from averseness to undertake the labor of examination, and the pressure of other executive duties; and this, it was probably thought, could not be provided against by an express limitation, without unnecessarily (after the adjournment of the legislature) circumscribing executive discretion. This, I think, is a sufficient answer to the only argument which I have seen, founded on considerations of public convenience or policy, against the construction, giving the governor the power in question.

bfow, let us look on the other side of this question of public convenience or public policy. The provisions in the first constitution-of this state, adopted in 1777, before the adoption *32of the constitution of the United States, by which this veto check upon legislation was given to the chancellor, the judges of the supreme court, together with the governor, as a council of revision, that (as expressed in the constitution) “ laws inconsistent with the spirit of this constitution, or with the public good,” might not be “ hastily and unadvisedly” passed; and in the place of which .the present provision giving this veto power to the governor alone, was first adopted from the constitution of the United States into the state constitution of 1821; and the proceedings of the convention which framed the constitution of the United States, and the debates on that constitution in the convention framing it, and in the state conventions adopting it; conclusively show that this veto check, as we have it now in the state constitution of 1846, is and was intended to be a revisory power and duty, necessarily implying in its faithful, conscientious and momentous exercise and discharge, time, investigation and judgment. From these written constitutions themselves, as well as from the proceedings of the conventions framing them, and the debates on them, it is plain that the three great departments of government, or political power, the legislative, executive and judicial, were not only intended to be checks upon each other, but to be as independent of each other as possible. The history of the constitution of the United States shows, that many of the greatest and best men taking part in the conventions framing and adopting it, and others of that day, feared that, notwithstanding the constitutional checks upon the legislative power, it would in the end become tyrannical and oppressive, and “ swallow up (as expressed on one occasion) all the other departments of government.”

Their recent experience of parliamentary omnipotence and oppression had shown them that tyranny was not the less tyranny for having a hundred heads. It is plain that in this country all political liberty depends upon the integrity of our written constitutions; and without reference to the past, or recent experience, it is equally plain that a fanatical, partizan, *33log-rolling congressional or legislative majority might pass bills, not from public motives or for the public good, but from personal selfish motives, or for partizan or bigoted purposes, and which, although strictly within the constitutional limitations of legislative power, might be unnecessary and oppressive and unjust to the minority. The framers of these written constitutions thought so, and hence this great conservative and protective veto check. And from the origin and very nature of these written constitutions, this veto power, although conservative, is an equally popular representative element of the government with the legislative power. The constitution is the written will of the people; its protection is the protection of their government j the governor is elected directly by the people, and returns to them, and,- in the exercise of the veto power, represents and acts for the people of the whole state. It is not like the veto of the English orown, left in the crown for the protection of the prerogatives of the crown, or the individual liberty of the monarch, but is more like the veto of the magistrates called tribunes among the Eomans, which was given to them, and which on their first institution was used by them to protect the liberties of the people. Sow, such, being the origin, nature and purpose of this veto power, which construction of the constitutional provision giving it to the governor, is most commended by public policy, or public convenience, or even popular liberty properly understood-—■ that which compels its exercise by the governor during the turmoils, confusion, lobby appliances and haste of the close of the session, embarrassed and hesitating between an earnest wish not to defeat any good bill, an honest determination to veto all corrupt or unconstitutional bills, and want of time to examine all the bills, which an adjournment momentarily expected, and which may come at any time without notice, may leave in his hands; or that which, following the spirit and purpose of the ten days’ limitation for keeping a bill during the session of the legislature, gives him sufficient time for the faithful and conscientious exercise of this great conservative *34power and duty ? Even with an honest and pure legislative majority, is there .more danger from delays than from haste in legislation? I think not. We know that the legislature might, if they never have, under a specious title, and under a mass of legislative verbiage, conceal the most dangerous attack upon the constitution, or the most corrupt private individual purpose. It would be the duty of the governor, in the exercise 'of this veto power, to ferret out the attack upon the constitution, and to unfold the folds of iniquity contained in the bill. This duty would require time and deliberation, and the construction claimed for the provision of the constitution in question by the attorney general might, I think, interfere with its faithful discharge.

The argument, from the supposed analogy between the English constitution and ours, has, I think, but very little force. By the English constitution, the king is a constituent, part of parliament; and from the very origin of the English constitution, as it now is, it follows that he must be so. By the feudal law, proprietorship conferred jurisdiction, and by the feudal law, as introduced into England, the king was deemed to have the proprietorship, or “jus proprietas,” as distinguished from the use and occupation, or the right of use and occupation, of all the lands' in England. Hence, by the theory of the English constitution, the king is not only the fountain of all justice, but also of all legislation. The history of parliament shows that the ancient method of passing laws was by petition and answer; and that the acts of parliament, or the tenor of them, were published by regal proclamation. The history of English liberty shows that almost all its guarantees, in the form of statutes or otherwise, like sparks from the flint and the steel, have been struck from the crown, by collisions between the barons, or the people, and the crown; and that the veto power has been (as I have before expressed it) left in the crown for the protection of its prerogatives.

The tyranny of the English parliament, and our revolution, wrought out and gave vitality to, if they did not originate a *35new principle of political jurisdiction, to wit, the right of the people to make their own governments; and the results were, written constitutions, granting even limited legislative powers, subject to the qualified negative of the executive, not as a constituent part or branch of the legislature, but as an independent executive act, for the protection of the people and of their constitutions. Besides, as by the English constitution, it is a prerogative of the king to convoke and prorogue parliament, he can at all times take sufficient time for the considerate exercise of his veto power. It would appear, however, that the king generally has power through his ministers or by the creation of peers, to defeat a.bill without the responsibility of "a veto, for I believe there has not been an instance of its exercise since 1692.

The practice at Washington has been, I believe, for the president not to sign bills or resolutions after the adjournment of congress ; but the practice of some of the governors of this state has been different. How long or to what extent it has been the practice for the governors of the state to sign bills after the adjournment of the legislature, I have not the means of ascertaining; but it would appear that of the bills passed at the session of 1855, when the act in question in this case was passed, no fewer than fifty-five received the signature of the governor after the adjournment of the legislature ; and in view of the magnitude of the interest involved, I should hesitate to consider the practice at Washington of controlling weight, did I deem the question more doubtful than I think it to be from the constitutional provision itself. It is not extraordinary that the national executive, if he had the least doubt of his right to sign a bill after the adjournment of congress, should have been very careful, even at his personal inconvenience, to sign all bills which he did approve, before the adjournment. Upon the whole, I think the act in question became a law, although signed by the governor after the adjournment of the legislature.

But it is insisted that if the alleged act has the authenti*36city of legislation, it is void as unconstitutional; and whether it is so, is the second question raised by the demurrer in this case. It is insisted that it is unconstitutional:

First. Because it establishes a monopoly in the trade or business of supplying gas within the city of New York, and is within the constitutional legislative prohibition, that “ no member of this state shall be disfranchised or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land or the judgment of his peers.”

Second. Because it takes for the uses of the gas company the streets, or easements, or privileges in the streets of the city, being the property of the corporation of the city of New York, without making or providing for compensation to the city, and without the consent of the corporation of the city.

Third. Because the constitution (Art. 8, § 1,) has specifically prohibited the creation of corporations by special acts, except in cases where “ the object of the corporation cannot be attained under general laws,” and the object of this corporation being to make gas for the purpose of lighting streets, &c. and buildings in the city of New York, this whole object was attainable under a general law passed by the legislature in 1848. (Laws of 1848, ch. 37, p. 48.)

As to the first objection to the constitutionality of the act, it is insisted that the monopoly complained of arises from the authority given by the act to the two boards of the common council of the city of New York, “to grant and vest exclusive permission and authority to and in said company,” for certain purposes. It is not necessary to inquire whether, irrespective of the express constitutional provision above quoted, prohibiting legislation against vested rights, there is any other or further prohibition of monopolies implied from the form of the government or from certain great principles of justice and equality upon which the constitution was founded, and supposed to have been taken for granted by it; for I think that in this case the only semblance of an argument that the act creates, or authorizes a monopoly, or wrongfully affects vested *37rights or privileges, is founded on- an erroneous construction of the act. The first section of the act, after creating and declaring the defendants and their associates to he a body politic and corporate, with the power to manufacture and sell gas, to be made of coal or other materials, for the purpose of lighting the streets and buildings in the city of Hew York, and to lay pipes for the purpose of conducting gas in any of the streets, &o. of the city, and to adopt any other necessary means to furnish gas to any inhabitant of the city,'declares “that no public street, avenue, &c. in the said city, shall be dug into or defaced, &c., without the permission of the two boards of the common council of the said city first had and obtained ; and the said boards are hereby authorized to grant and vest exclusive permission and authority to and in said company for said purpose, to such an extent, and under such regulations as to them shall seem expedient; and such permission and authority shall be conclusive, and shall continue as thus fixed during the period designated by said boards at the time of granting the same. But the rights and privileges hereby granted shall not be construed to affect or impair any exclusive rights or privileges vested in any incorporated company in said city.” How I think the exclusive permission and authority here authorized, relate simply to laying pipes, &c. in the streets of the city, and to digging into or defacing the streets, &e. for that purpose; whereas the counsel for the plaintiffs appear to think that the act authorizes the two boards to grant to the company the exclusive right of furnishing or selling gas made in any way or by any means; so that a citizen could not, after the grant of such exclusive privilege, make his own gas, on his own premises, and no other citizen or person could lawfully furnish him with gas made in portable machines and conducted without pipes in the streets, or without using the streets at all. If the authority to make the exclusive grant refers only to the use of the streets, and to the right of their use for the purpose of laying and repairing gas pipes, then it is very clear that had the two boards made their *38grant of such permission and authority exclusive, and were the defendants about to act under such exclusive grant, whether they would have a light so to act, would be a question entirely between them and the city corporation, or the persons in whom the title of the streets was, if not in the corporation ; and that in this action, in the nature of a quo warranto to declare the act of incorporation null and void, the attorney general has nothing whatever to do with that question. The legislature, without reference to the special provision of the constitution prohibiting special acts of incorporation in certain cases, certainly had a right to incorporate the defendants for the purpose of making gas and furnishing it to the citizens. Whether the corporation can do so without using the streets of the city, or whether the two boards of the common council have or have not a right to grant the use, or the exclusive use of the streets for the purpose, are all questions in no way affecting the constitutional right of the legislature to incorporate the defendants for the purpose of making and furnishing gas, &c., and are, in fact, in no way involved in the judgment asked for in this action. This I deem a sufficient answer in this case to the first objection to the act, on the ground of its unconstitutionality; but I will add, that the resolution of the two boards of the common council granting permission to the defendants to use the streets, &c. is set out in the complaint, and that it contains a simple permission to lay pipes for the purpose of conducting gas through the streets, &c. for the period of thirty years, subject to the same restrictions as to the mode of laying down the conductors, as apply to and govern the New York and Manhattan Gas Light Company. There is nothing exclusive in the permission, not even an assurance or guarantee, that the like permission would not be given to another company, or to an individual, the next day. Now, how can the attorney general, in behalf of the state in this action, urge that the legislature had no fight to grant to the two boards an authority which the defendants were-not able to avail themselves of, or *39which they did not think proper to avail themselves of, if they could have done so ?

As to the second objection to the constitutionality of the act, that it takes for the uses of the company, the streets, &c., being the property of the city corporation, without compensation to or the consent of the city corporation, I think it has been sufficiently answered in answering the first constitutional objection ; but I will add, that the act itself certainly does not work this alleged violation of the constitution, and that when the defendants shall undertake to act under the permission granted to them by the two boards of the common council, and the city corporation is before us as a complainant, it will be time enough to examine and decide whether the two boards alone could give the permission, and whether it authorized the act, or threatened act under it. I do not think the attorney general has a right to raise this objection in this action.

As to the third and last objection to the constitutionality of the act—that the legislature were prohibited by the constitution from passing it, because the objects of the corporation could have been attained under the general act—the answer to it is, that the provision of the constitution containing this prohibition would seem, in express terms, to leave it to the legislature to decide whether the objects of a corporation can or cannot be attained under a general law; and it has been held in two cases, (Mosier v. Hilton, 15 Barb. 657, and United States Trust Co. v. Brady, 20 id. 119,) that whether a special act of incorporation is necessary or not, is a matter entirely for the judgment and discretion of the legislature. The last case, it is said, has been affirmed by the court of appeals, though not reported.

The third and only remaining question in this case, whether this corporation was subject to the provision of the revised statutes, requiring corporations to organize and commence the transaction of their business within a year, or, if it was, whether it did organize and commence the transaction of its business within the year, is in a nut-shell. The 9th section *40of the act is as follows: “ The said company shall he deemed to be organized when the president shall be elected, and shall be deemed to be in practical operation from the time the permission and authority provided for in the first section is obtained.” I am of the opinion that this section was intended to relieve, and does relieve, this corporation from the provision of the revised statutes above referred to. I can see no other purpose for this extraordinary provision.

It is argued on the part of the people that this corporation, under the provision of the revised statutes, were obliged to obtain the permission and authority provided for in the first section of the act within the yearj that this 9th section, declaring that the company should be deemed to be in practical operation from the time of such permission and authority, by holding, with reference to both statutory provisions, that the permission and authority should have been obtained within the year, effect would be given to both statutes. This argument admits, what indeed follows from the express words of the 9 th section, that if the permission and authority had been obtained within the year, the company would have been entirely relieved from the obligation of the revised statutes, and could, in fact, have commenced practical operations at any time thereafter. It appears to me that this argument stultifies the legislature. What could have been the object in compelling the company to obtain the permission and authority within the year, and then permit them, after obtaining such permission and authority, to rest upon their mere corporate rights for any number of years, without, in fact, doing any other or further thing P This construction, while it puts the defendants technically within the provision of the revised statutes, for the -purpose of a forfeiture of their corporate rights, leaves them outside of, and unaffected by, and relieved from the whole policy and beneficial purpose and operation of the provision of the revised statutes. Had the defendants obtained the permission and authority within the year, they would have been, on obtaining the same, in reference to the *41purpose and business of their incorporation, and the policy of the general law of the revised statutes, in precisely the same position as they would have been at the date of their incorporation, had neither the object and business of their incorporation, nor the act, required them to obtain such permission and authority, or permission and authority from any one before going into operation.

I cannot concur in the view of the question presented on the part of the people. I suppose the applicants for this special act of incorporation thought, and that the legislature thought, that the corporation might not be able to obtain the permission and authority within the year, and that this special provision, in its special act, was put in it with reference to the general law in the revised statutes, and for the purpose of relieving the defendants from it. It may be that this special provision of the act made it a proper subject to illustrate the value of an executive veto power; but with that I have nothing to do. It was plainly within the power of the legislature, entirely, to relieve the defendants from the penal provision of the general law, and I think they intended to do so by the special provision in their special act. But, suppose it is not so; and that effect can be given and should be given to the general provision, and the special provision both. The special provision of the act declares that the company shall be deemed to be in practical operation from the time the permission and authority is obtained. Then why was not the application of the defendants, as a corporation, by petition to the board of councilmen, in June, 1855, alleged in the complaint, the commencement of the transaction of its business within the provisions of the revised statutes ? As the legislature had seen fit to do so absurd a thing as to declare, in effect, that the obtaining the permission and authority should be deemed the business for which the defendants were incorporated, I do not see why the court must not hold, that the application by the corporation for the permission and authority in 1855, and the *42proceedings of the two boards thereon, alleged in the complaint, were not a commencement of its business.

[New York Special Term, July 22, 1859.

It is not alleged in the complaint that the company did not elect a president within the year, and therefore it must be assumed that it was organized within the year by the election of a president, within section nine of the act.

Upon all the questions raised by the demurrer in this case, my conclusion is, that the defendants must have judgment on the demurrer with costs.

Sutherland, Justice,]