57 N.Y. 177 | NY | 1874
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The Court of Appeals in The People v. Mitchell
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If this be the true intent of the statute, it remains only to ascertain if the legislature had power to enact it, and then, if it is to be applied to an action commenced before its passage. The authority of the legislature to enable towns and other civil divisions of the State to subscribe for stock and issue bonds in aid of railroad companies is established by numerous decisions. (Bank of Rome v. Village of Rome,
The substantial grounds of these decisions were, that the legislative power of the State was limited only by the restraints expressed in the Constitution, and that none of those restraints were infringed by the legislation in question. The question then arises, whether there is any distinction in principle between a law authorizing a town to subscribe for shares in a railroad and to issue bonds in payment therefor, and a law directing the same thing to be done. That, in the absence of special constitutional restraints the State itself may build and run a railroad, or may take shares in it is obvious. Indeed, in the infancy of such enterprises, the grant of the right of eminent domain to railroad companies was sustained upon the idea that railroads were, in their own nature, public undertakings and of public use, as other highways. It was considered a mere prudential question, to be decided by the State itself, whether it would construct them as public works, by the State officers, or commit that power to private individuals, who should do the work and derive their remuneration from the profits of the enterprise. With these views the State made loans and subsidies in aid of such undertakings; and in the earlier laws for the incorporation of railroad companies, provided for the assumption *189 by the State of the whole enterprise, upon terms of payment prescribed in the acts of incorporation. Of this the act incorporating the Utica and Schenectady Railroad Company (Laws of 1833, p. 462) is an illustration. The whole machinery of incorporation, of stock and stockholders, was regarded as a means of accomplishing a public work designed for the public use and convenience. This being so, it is not perceived how the particular agency employed to effect such a work can change its character.
A town is, as to the powers it shall possess and the functions it shall perform, the creature of the legislative will. No reason is perceived, so far as the town itself is concerned, considered apart from its inhabitants, why the legislature might not impose upon it, as one of its functions, the duty of keeping in repair or of operating a railroad within its borders. I speak only of the question of power, conceding that its exercise would be in the highest degree objectionable and inexpedient. The power to impose special burdens on localities and to determine the cases in which it is suitable to impose them, belongs to the law making power. In Thomas v. Leland (24 Wend., 65) the power was exercised by imposing a tax on Utica to pay for a change of the termination of the Chenango canal, in respect to which certain of its citizens had become voluntarily bound to the State to pay the expense. More recently, in Guilford v. Chenango County
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The real ground of objection to such legislation is its consequence to the individuals resident in the towns affected. Yet it can be readily shown that the whole principle involved is covered by the adjudications in the Bank of Rome v. TheVillage of Rome, and the other cases cited in that connection. In the law in question in that case (and such has usually been the provision of statutes giving town aid to railroads) power was given to a majority to determine whether those who compose it, and the minority who dissent, shall alike be bound through the liability of their property to taxation, to contribute to such enterprises. As the majority in any municipal community has no such inherent power to bind the minority and require them to bear taxation for a purpose they disapprove, it is evident that the power thus exercised is derived from the grant of the legislature. Thus granting power, the legislature binds the minority without its consent; and, on the same principle, it may make the duty imperative on both majority and minority in any locality to subscribe for stock, to issue bonds, and to pay taxes levied for the purpose of constructing a railroad. For, if it may bind one citizen without his consent, it may bind all; the rights and immunities of all being no more beyond the legislative power than those of each individual. It therefore rests in the legislative discretion to impose any conditions it may think the public *191 welfare requires to the exercise of such a power. Nor, when it has once acted, has it parted with any portion of its authority. It may always and at any time do what it might have done in the beginning. It may take away any conditions and make the duty absolute at once, or impose other and new ones at its pleasure.
It is not necessary, however, to go to this extent in the case before us. How the consent of a town shall be given is clearly in the discretion of the legislature. It has often given it to the majority in number and amount of tax-payers; it may give it to the supervisor, or any other officer, since the whole power is of its creation, and since the consent of all the tax-payers or inhabitants but one is powerless to bind the single dissentient, except upon the theory of the complete and plenary power of the legislature in the premises. In this case a commissioner has been regularly appointed under the statute, by whom bonds were to be issued and stock subscribed for, provided certain consents were obtained and proofs filed according to the requirements of the several acts upon the subject. Consents were obtained and proofs were made and filed which are now, on the one side, claimed to be, and on the other are denied to be, in conformity to the law. The commissioner, meanwhile, executed the bonds, subscribed for stock and delivered the bonds to the company in payment of the subscription; complying with the requirements of the statute in all respects, if the requisite consents had been given and proofs made. The only officer of the town who had any duty in the premises, acted by giving the bonds; and the legislature, seeing the whole matter, released the conditions which it had imposed, and declared his assent binding upon the town, if the bonds had been issued and the road had been built and the bonds in that case obligatory. As it might have authorized action in this way and on these conditions, by the town, originally, I see no objections to giving effect to its ratification of the action of the town and holding its consent, thus expressed, effectual.
A question is made in the next place, upon the ground that *192 the confirmatory statute of 1864 ought not to affect the rights of the parties to this suit, it having been commenced before the passage of that act. But the question at the trial was, and always is, upon the facts of the case what does the existing law pronounce as to the rights of the parties. There can be no doubt that it was the intention of the legislature that the statute should operate to cure existing defects in the mode of executing the authority previously granted. Indeed, that is the plain and declared purpose of the provisions of the statute. There is no exception of existing suits as often is practiced when such is the legislative purpose. The declaration is broad and general, the bonds shall be valid and binding on the town, provided only they have been issued by the commissioner and the road has been constructed through the town. The facts existing, the rule of law announced by the statute is clear, and, I know of no authority that exists in a court of justice to pronounce a judgment which conflicts with the existing law.
At the June Term of the Commission, and before the decision by the Court of Appeals in The People v. Batchellor, we were prepared to give judgment in this case in accordance with what has now been said. The decision mentioned, imposed upon us the duty of considering whether it conflicted with our views, and of conforming our judgment to that of the court, in case such conflict existed. But, upon examination, we find that the cases are fairly distinguishable from each other. In that case, the application was for a mandamus to compel a town to become a stockholder in a railroad and to issue its bonds in payment of the subscription price of the stock. No subscription had been made, no bonds had been issued, nor had any tax-payer of the town nor any town board, or officer, or elector of the town, ever assented, as the court held, to the issuing of bonds or the subscribing for stock. Under this state of facts, the court, not professing to overrule any of the previous decisions of its predecessors, decided that a mandamus ought not to issue to compel the execution of bonds and a subscription to the stock, although a statute directed *193 that these acts should be done. It is true that the argument of the opinion delivered, which was assented to by only four of the judges, does deny the power of the legislature to compel a town to take stock in a railroad company without its assent; yet, it admits the competency of the town by its own assent and that of a majority of some sort, and with the authority of the legislature to do these very acts. And I have endeavored to show that the admission is fatal to the argument, and that in either case, the validity of the act, or the obligation to perform it, depends upon the power of the legislature. The judgment of the court is all that binds it as a precedent, and it would be within the rightful power of the court at any time to limit the opinion to the point adjudged, upon the facts existing in the case. The same right belongs to us, and ought to be exercised where we are of opinion that the rules of law require its exercise. The case before us is essentially different, in facts material to the rights of the parties, from that decided in the Court of Appeals. Here the subscription has been made, and the bonds have been issued, by the consent and act, at least of that representative of the town, who is pointed out by the statute as the person who is to execute the bonds and make the subscription. This action of the commissioner was, consequent upon the consents of tax-payers given, and proofs thereof filed in professed compliance with the terms of enabling acts, and consenting to the very act of giving bonds, which has taken place. Difficulties and litigation having arisen as to the exact compliance with the terms of the enabling acts, the legislature at length has interposed and declared that when the road has been built and the bonds have been issued the bonds shall be binding on the town, without reference to defects in the proofs and affidavits. It seems to me that this is a very different question from that presented to the Court of Appeals. The one is merely remedial of defects occurring in the exercise of a power legitimately conferred, and making certain facts conclusive evidence of the proper exercise of the power. The other imposes, or attempts to impose, an obligation without the consent and *194 against the will of the party to be bound, when no act of performance has taken place.
The measure of consent, on the part of the town and its tax-payers or electors, was fixable at the will of the legislature originally. If not, then the whole power must be denied, for the people of a locality cannot confer power upon the legislature. And if it originally rested with the legislature to fix the terms on which the towns might act, the same power will suffice to remit a part of the conditions imposed, or to heal any defects which may have occurred in the performance by the towns of those conditions. Such was the decision of the Court of Appeals in The People v. Mitchell (
It is not inappropriate in this connection to say that the questions involved are not peculiar to our jurisprudence, and do not depend on the special language of our Constitution, but rather upon views in respect to governmental power. If a limit is imposed, founded on arguments drawn from the nature of legislative authority, this limit is one of judicial creation and definition, and the result must be to subject the power of legislation to the control of the judiciary, except where the legislative power is definitely affirmed in the Constitution itself. That the people, in this State at least, have never been willing to intrust such a power to the judiciary, and that they in fact have not done so, I am confident.
In many of the other States of the Union similar questions arising under Constitutions of nearly the same tenor as our own, and certainly the same in substance, have been determined *195 in favor of the legislative power. Their number is so great and their purport so uniform that reference to particular cases is not necessary. Most of them are referred to in 2 Redfield on Railways (4th ed., 395-405). The course of decision in the Supreme Court of the United States has been in the same direction, and the three cases of St. Joseph Township v.Rogers (16 Wall., 644), Railroad Co. v. Otoe (id., 667) andOlcott v. The Supervisors (id., 678) cover all the ground involved in this case. It is true that on these questions the decisions of that court are not authoritative in the sense that it has not, in all these cases, the right of direct review. But it is equally true that the inquiry in all these cases turns not upon the construction of particular constitutional clauses, but upon the general question of the just limits of legislative and judicial power; and that the agreement of that court with the great current of judicial decision of the different States is strong and persuasive evidence that the doctrines in which they all concur cannot be so far contrary to the fundamental notions of justice as to require us, in the absence of any express constitutional provision, to deny to the legislature of this State the same authority, the exercise of which in other States they sanction.
I am, therefore, of opinion that the judgment below ought to be reversed and a new trial ordered, costs to abide the event.
All concur.
Judgment reversed. *196