Sun Printing & Publishing Ass'n v. Mayor of New York

The legislation in question is assailed upon many grounds. The first, and perhaps the most important, is that it violates the constitutional provision that no county, city, town, or village shall “be allowed to incur any indebtedness, except for county, city, town, or village purposes.” Const, art. 8, § 10. The question is thus raised whether a rapid transit railroad, wholly within the limits of a city, is a city purpose. That it is a public purpose does not seem to admit of question. But is it a legitimate city purpose? In considering this question in connection with an act for the laying out of public places and parks in the Twenty-Third and Twenty-Fourth wards of the city of New York, and in the adjacent district of Westchester county, the court of appeals (Judge Finch speaking for the court) said that “the purpose must be primarily the benefit, use, or convenience of the city, as distinguished from that of the public outside of it, although they may be inci

Unless, therefore, we are to lay down a hard and fast rule limiting municipal action to what has already been done, and to nothing else, the mere fact that a rapid transit railroad in a city was never before planned or executed by a municipal corporation ought not to foreclose the question. The true test is that which requires that the work should be essentially public, and for the general good of all the inhabitants of the city. It must not be undertaken merely for gain or for private objects. Gain or loss may incidentally follow, but the purpose must be primarily to satisfy the need, or

The health of the people is dependent in a measure upon decent and convenient transit between their homes and their places of business; not in as great a degree as upon light, air, and water, but in no inconsiderable degree. The scheme under consideration is intended to supply not only rapid, but such decent and convenient, transit, to ameliorate the present congestion which at certain hours of each day is fraught with danger to thousands; and to furnish business men and women with the means of reaching their homes at such hours without being crushed in body or worn in nerve. The question cannot be justly solved without considering the problem which was before the legislature when it was asked to pass these acts. The court must take judicial notice of the city’s history in this regard. We know that relief had been sought through the instrumentality of private adventure, and that capital was not forthcoming. The legislature had before it this latter crucial circumstance. The need of the people was growing day by day. The hope of relief in the ordinary manner was steadily receding. Shall it be said that, in such emergency, the people were helpless except through an amendment to the constitution; that in such a crisis, and under such exceptional circumstances, the legislature could not adjudge, upon all the facts before it, a new and imminent, though hitherto unknown, city purpose? It is not the province of the court to deny the legislative power to thus adjudge. The present enterprise was demanded of the city by the surrounding conditions. It was a public enterprise. It was not for travelers nor for public travel, in the ordinary sense. It was for daily and hourly use in the business and home life of our people. It was entirely within the boundaries of the city. It was primarily for the benefit alone of its long-suffering inhabitants. It was not tainted with even the suggestion of a private character, nor with the purpose of gain. The sole object was public and general locomotion in the locality; locomotion for which there was a crying need; safe, rapid, healthful locomotion; locomotion worthy, in fine, of a civilized metropolis and of a well-governed municipality.

The case at this point is clearly within the principle of People v. Kelly, 76 N. Y. 475 . It was there held that moneys used in acquiring the New York and Brooklyn Bridge property would be expended for a city purpose. No apparently valid distinction exists between transportation over a bridge from one county into another and transportation within the city limits by a rapid transit railway. If one comes within the “ordinary range of municipal action,” so, surely,

The past history of the state indicates that the special evils at which the constitutional provision was aimed were improvident" investments in the securities of railroad corporations of the funds of the cities, towns, and villages along the route. Of course, these railroads were not built for the use of any of the municipalities in question, and, in general, benefited no one of them more than another. The investment of their funds in this manner was simply a speculation, which was generally unprofitable. It is a sound policy to check municipalities in embarking their capital in business enterprises' for the mere hope of gain. It is not proper that a city should engage in the railroad business, or, indeed, in any other business, merely as a private adventure. Its actuating motive in every work it undertakes should simply be to advance the interests of its citizens by remedying some existing evil. That was the sole motive in the legislation under review. The rapid transit board is not to consider whether a railway could be made a paying investment, but whether (Laws 1894, c. 528, § 4) it would be “in the interest of the public and of the city in which it [the board] is appointed.” When we recall the fact already adverted to that the evil in question was one which

These considerations seem to us to be decisive of this particular question. It is proper, however, that we should briefly notice another view' of it, which the appellants, in their point with regard to local self-government, impliedly present, namely, that p city purpose presupposes immediate' municipal control, and that there can be no city purpose without actual and direct corporate possession, control, and use. This is the first time it has ever, to our knowledge, been suggested that the city purpose referred to in the constitution relates to the method of doing a thing, rather than to the thing itself. We suppose that the real question is whether municipal construction of a rapid transit railway within the city limits, for the benefit, mainly, of the people of the city, is itself—that is, inherently—a city purpose. The machinery provided for effecting this purpose surely throws no light upon the main question. The machinery is not the purpose. Whether the legislature has provided constitutional machinery is another question. It, at least, attempts to create corporate agencies when “in each city” having a certain population it directly appoints a board of rapid transit commissioners “in and for such city.” Laws 1894, c. 752, § 1. And it has created these agencies effectually if such direct appointment was constitutional. That would seem to close the discussion as to direct municipal control. It is quite immaterial whether these municipal agents are appointed in one way or in another, so long as they are constitutionally appointed. If con

Whether public officials are local or state officers depends upon the functions which they are required to perform, not upon the source of their appointment. These rapid transit commissioners are clearly local officers in each city embraced within the statute; (hat is, local officers lawfully appointed by the legislature for each locality. Their character does not depend upon the form or general structure of the act. Local officers may be appointed in a general act, as Avell as in a local act. The act in question appoints a local board for each city embraced within its classification, varied in its membership by Arariations as to certain local officials. The functions of these boards are strictly local. Their primary function is to consider and determine Avhether it is for the interest of the public and of the city in which each is appointed that a rapid transit railway should be established therein. Laws 1894, c. 528, § 4. They act, in fact, for the particular city throughout. They acquire property for it. They sue in its name and on its behalf. . They are even spoken of in the act as the “city’s board of rapid Iransit commissioners.” Laws 1894, c. 752, § 34. It is provided (section 60) that all property acquired under the provisions" of the act “shall be, and shall be deemed to have been, acquired for public uses and purposes, and for the purpose of affording increased facilities for rapid transit between points within the city acquiring such property.” If the board shall at any time cease to exist, the act declares that the legislature may provide what public officer or officers of the city shall exercise its power under any existing contract, and, in default of such provision, that such powers, and duties shall be deemed to be vested in the mayor of the city.

The language of Judge Earl in the case of Mayor, etc., of New York v. Tenth Nat. Bank, 111 N. Y. 454 , 18 N. E. 620 , is quite applicable here. Speaking of the commissioners of the New York county courthouse, that learned judge said:

“The commissioners appointed to build it Avere county commissioners, engaged in disbursing county moneys, and discharging functions devolved upon them as county officials or agents. It matters not that they were appointed by the mayor of the city. It was for the legislature to determine how they should be appointed. It could have named them in some act, or could have devolved their appointment upon the board of supervisors, or the sheriff, or some other local officer. Their character as county commissioners depended, not upon the source of their appointment, but upon the nature of their duties and powers, and of the work they were required to perform.”

For the same reason, it was held in People v. Civil Service Supervisory & Examining Boards of City of New York that employés" of the aqueduct commissioners were in the civil service of the city. 41 Hun, 287 , affirmed, on opinion below, in 103 N. Y. 657 .

The same doctrine was reaffirmed, in substance, in People v. An

Thus, this rapid transit board was an agency provided for the city by the legislature for a public purpose, especially affecting the locality,—that is, for a city purpose; and it was so provided in the exercise of the legislature’s sovereign powers. . “Municipal corporations,” said Judge Earl in Mayor, etc., of New York v. Tenth Nat. Bank, supra, “are creatures of the state, and exist and act in subordination to its sovereign power.” “Municipal corporations,” said Judge Andrews in Brown v. Mayor, etc., 63 N. Y. 244 , “are agencies of the state, through which the sovereign power acts in matters of local concern.” It would seem to be quite clear, therefore, that the direct appointment of these commissioners by the legislature has no possible significance in the solution of the question whether this is a legitimate city purpose, or, rather, whether the legislature has constitutionally adjudged it to be a legitimate city purpose.

Still less is this question embarrassed by the terms of the act with regard to the construction and operation of the road. It is quite immaterial, so far as the question of city purpose is concerned, whether the road shall be built in one way or in another, or operated in one way or in another. The material fact is that the road (section 3) “shall be and remain the absolute property of the city so constructing it, and shall be, and be deemed to be, a part of the public streets and highways of said city, to be used and enjoyed by the public upon the payment of such fares and- tolls, and subject to such reasonable rules and regulations, as may be imposed and provided for the board of rapid transit commissioners in said city.” Laws 1894, c. 752, § 9, as amended by Laws 1895, c. 519, § 30. How this latter provision shall be effectuated, whether by a long lease or a short lease, by a lease with this covenant or that covenant, by a lease with or without provision for renewal, by an individual lessee or a corporate lessee, or by no lease at all, but simply by direct municipal service, is mere matter of detail. The legislature could lawfully provide how the road should be constructed and operated, and upon what terms and conditions; and it could lawfully confer authority upon the agents provided for the city to make these terms and conditions. Its directions on that head surely did not make or unmake the essential factor of a city purpose. The appellants’ view of this phase of the question necessarily concedes that it would be a city purpose—apart from other objections—if the road, whefi constructed, were to be operated directly by the city or its immediate agents; that is, by. a horde of new officials. The legislature, in its wisdom, (and who will venture to assert that it was not wisdom?) has set its face .against this mode of executing the adjudged purpose. It has sought to grant relief,

The next question presented is whether there has been a violation of the other portion of section 10 of article 8 of the constitution, providing that:

“No 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.”

Section 34 of the act, as amended, authorizes the rapid transit board to—

“Enter into a contract with any person, firm or corporation, which in the opinion of said board shall be best qualified to fulfill and cany out said contract, for the construction of such road or roads, upon the routes, and in accordance with the plans and specifications so adopted, for such sum or sums of money, to be raised and paid out of the treasury of said city, as hereinafter provided, and on such terms and conditions, not inconsistent with the aforesaid plans and specifications, as said board shall determine to be best for the public interests. ••• * * Such contract shall also provide that the person, firm or corporation so contracting to construct said road or roads shall, at his or its own cost and expense, equip, maintain and operate said road or roads for a term of years to be specified in said contract, not less than thirty-five, nor more than fifty, years, and upon such terms and conditions as to the rates of fare and the character of service to be furnished and otherwise as said board shall deem to be best suited to the public interests, and subject to such public supervision and to such conditions, regulations and requirements as may be determined upon by said Board. * * * The contract may also provide for a renewal or renewals of the lease upon such terms and conditions as to the board may seem proper, and also for the valuation of the property belonging to the lessee and its purchase by the city in case the lease should not be renewed. Such contract shall further provide that the person, firm or corporation so contracting to construct, maintain and operate said road shall annually pay into the treasury of said city, as rental for the use of said road, a sum which shall not, except as thereinafter provided, be less than the annual interest upon the bonds to be issued by said city for the construction of said road as thereinafter provided for,' and in addition to said interest a further sum which shall not be less than one per centum upon the whole amount of said bonds: provided, that in estimating such annual interest and additional percentage there shall be

deducted from the amount of said bonds the amount thereof issued to pay for rights, terms¡ easements, privileges or property other than lands acquired in fee. Such rental and the term for the operation of said road shall begin as to said road or any section thereof when the same shall be declared by the board of rapid transit railroad commissioners to be completed and ready for operation. For the purpose of estimating one per centum upon the ascertainment of the amount of such rental, there shall be included such portion of the said bonds as shall have been issued to pay interest on bonds theretofore issued under the provisions of the act, except bonds issued to pay for rights, terms, easements, privileges, or property other than lands acquired in fee.”

Subsequent portions of the section direct that the contractor shall give a bond to the city in such amount as the board shall fix, conditioned for the prompt payment of the rent and the faithful performance of the other covenants and conditions of the contract; also, for the deposit with the chief financial officer of the city, as further security, of not less than $1,000,000 in money or approved securities, to be returned, with interest or accumulations, upon the completion of the road. The city is also given a first lien upon the rolling stock, and the right to take possession of the road, upon the contractor’s failure to pay rent or breach of any of his agreements, and either itself operate the same or relet the contract; the original contractor being entitled to the balance after payment of the rent and all other charges and expenses, and being liable for any deficiency. A right of action is also given to the city, in case of breach of the contract, to forfeit the contractor’s rights thereunder, and recover damages.

Section 35 exempts the contractor from taxation in respect to his interest under the contract, and to the rolling- stock and equipment of the road. Section 36 directs advertisement for proposals. Section 37 directs the issuance of bonds to pay for construction, not to exceed $55,000,000, such bonds to be exempt from taxation.

The argument against the plan outlined above would appear to be about as follows: The city is to pay for the building of the road, and is then at once to lease it to the builder for a long period. The right to run the road and receive the income is the only valuable attribute of ownership. The length of the lease is such as practically to confer title in fee. The rent is merely nominal. Consequently, the city builds the road, and substantially presents it to the contractor; and so it “gives” its “property” to the contractor, in violation of the constitution. This is the plaintiffs’ first position. There are a number of unjustifiable assumptions here, of which the chief one is that the city can receive no substantial return for its investment. The act does not provide that the contractor shall be entitled to the lease at a rent of the annual interest upon the bonds and the further sum of 1 per centum'upon the whole amount thereof. That is the minimum,—a check upon the action of the commissioners. They are at perfect liberty to obtain as much more as may be obtainable. In this particular, as in many others, they are vested with a wide discretion. The plaintiffs’ argument rests necessarily, upon the theory that the board will not faithfully discharge its duties to the city, but will act entirely in

“Even if the claim that the city contributes to the private structure of the railroad were true, if, in consideration of such contribution, the railroad surrenders rights which it had to public streets and avenues, and the legislature chose to permit the city to buy out such rights by contributing to the expenses incurred because of such surrender, we see no possible constitutional objection thereto. It is merely paying a consideration for substantial advantages supposed to be gained. And we have nothing to do with the question whether the legislature directed the city to pay a high or a low price for the privileges which it acquired, or make an improvident bargain thereof, if their value is of such a character that an absolute gift cannot be inferred.”

We think the plaintiffs’ primary proposition on this head is wholly without merit.

Their second position is entitled to more serious consideration. Does the act contemplate a loan of the city’s money or credit to or in aid of any individual, association, or corporation? The transaction authorized by the law clearly cannot effect a partnership between the city and the contractor. The relation of lessor and lessee does not create a joint interest. The city remains throughout, in the eye of the law, the absolute owner. That the relation of lessor and lessee, which is in terms established upon the face of the contract, cannot, by judicial inference, be turned into that of partners, was directly decided in Walker v. City of Cincinnati, 21 Ohio St. 14 , where similar legislation was upheld as against a similar constitutional prohibition.

In Taylor v. Commissioners, 23 Ohio St. 76 , the Walker Case was distinguished, but its doctrine was fully approved. The court said, through White, C. J„ speaking of the facts in the Walker Case:

“The proprietary interest in the road when completed is as fully in the municipality as that of any other of its public works. It is the road, ‘owned’ by the municipality, that is authorized to be leased. The public use for

which the road was built is to be preserved, and the power of leasing the right to use and operate it is designed only as a mode of making such use available to the public.”

How, then, can the city be said to lend its money or credit to or in aid of the contractor? Only by our determining that the legislature meant to do so, and did not mean what, upon the face of the act, it said. The argument upon that head is that the legal title of the city will be but technical, and that the beneficial rights attaching to ownership pass to the contractor; that the risk throughout is the city’s, the profit the contractor’s. Yet here we have a direct contract to build the road for a sum to be agreed upon between the contractor and a carefully selected board; and, further, we have a direct contract to lease the road when built for a sum to be likewise agreed upon between the same parties. Assuming these to be honest contracts, meaning what they profess, the city does not lend its money or credit to the contractor. It surely does not do so when it pays him the contract price of his work. It simply pays its own debt to him. When it issues bonds to raise the money to pay that debt, it does not lend its credit to the contractor. It utilizes its own credit for its own purposes, namely, to enable it to pay its own obligations. Shall we, then, go behind the legislative declaration, and inquire whether its, at least, superficially innocent language was meant to cloak a design to violate the constitution? That would be to treat a legislative enactment as we would the acts of individuals in a suit to set aside those acts as fraudulent. The courts cannot thus probe the legislative conscience, nor can they try its intent and motives as they would questions of alleged fraudulent intent in an • ordinary action. Still less can they draw unconstitutional inferences from unambiguous constitutional expressions.

It "was said in People v. Draper, 15 N. Y. 545 , that:

“The courts cannot impute to the legislature any other than public motives for their acts. If a given act of legislation is not forbidden by express words, or by necessary implication, the judges cannot listen to a suggestion that the professed motives for passing it are not the real ones. If the act can be.upheld upon any views of necessity or public expediency which the legislature may have entertained, the law cannot be challenged in the courts.”

And again (page 555):.

“I will not say that a law may not be so palpably evasive of constitutional provisions that it would be the duty of the courts to pronounce the law void; not, however, because the legislature intended to evade, while they violated, its provisions, but because they had not succeeded in the evasive effort. We are not made judges of the motives of the legislature; and the court will not usurp the inquisitorial office of inquiring into the bona fldes of that body in discharging its duties.”

The latter language was cited with approval in Re New York El. R. Co., 70 N. Y. 327 , at page 351, where Judge Earl said that “it is •not to be presfimed or inferred that the legislature intended to violate or evade the constitutional restraints.” The question there was whether the act under consideration was local or general. The claim was made that it was local, because there was but one elevated railway in actual operation in the' state at the time of the passage of

“It may be that the construction which we have thus given to this act, and particularly to section thirty-six, may leave the way open to great abuse of legislative power, illustrations of which were given in the learned arguments before us. There may be ways for a legislature to circumvent a constitutional provision without violating it. History shows by many examples how the spirit of a constitution may be disregarded, and yet its letter observed. But there is a vital difference between the abuse of legislative power and its exercise in palpable violation of the constitution. For the former, the remedy is with the people alone, in the choice of faithful representatives who will respect their will; for the latter, alone, the courts, clothed with power always to be exercised with caution, can give a remedy.”

From these authorities we may fairly deduce the just rule that, where legislation is upon its face susceptible of two inferences, one pointing to validity, and the other to possible evasion, the courts, giving the legislative body credit for good faith, are bound to draw the former conclusion. The conclusion of invalidity can be arrived at only when the legislative act in terms violates some constitutional provision, or when, upon its face, though not in express language, it is so palpably evasive of such constitutional provision that but one inference—that of intentional violation—can be drawn therefrom. The act under consideration does not come-within this latter doctrine. Indeed, much of the argument against its constitutionality is simply criticism of the policy of the act, and an attempt to show that under it the contractor will secure an undue advantage over the city. Even if this criticism were valid, it would not establish a violation of the constitutional provision in question; but much of the criticism is unjust. Wide discretion is vested in a board of the highest standing and character under circumstances necessitating the grant of liberal powers to some, public agency. It is not a fair inference that the limitations placed upon the board’s contracting power are any index of the terms which will actually be made. The whole matter is within the discretion of the board, subject only to the limitations imposed upon it by the legislature. It will be the duty of the board to secure fair terms from the contractor. It need not contract at all until it secures such fair terms. Whether it secures them or not, it is not authorized, either directly or indirectly, to lend the city’s money or credit to or in aid of the contractor; and it cannot be justly asserted that any contract which it makes under the act must have such effect. It follows that the act is not in conflict with the constitutional provision in question.

It is contended, too, that the rule laid down in these authorities has been changed by the classification of cities provided for in section 2 of article 12 of the new constitution. We think this classification has no relation to “general,” “private,” and “local” laws, as these terms are used in other provisions of the constitution. This classification was simply for the purpose of regulating the passage of special city laws, and of giving the local authorities a proper opportunity of asserting themselves with regard thereto. The division in this section of laws relating to cities into general city laws and special city laws was certainly not intended to affect the well-established meaning of general, private, and local laws under existing adjudications.

But, even if the act were held to be local, we should have to go further, and see whether it grants to any such corporation as the constitution refers to in this connection the right to lay down railroad-tracks. We do not think that this provision of the constitution was intended to cover municipal or other governmental corporations. The corporations contemplated by the section under consideration were those referred to in the third section of the eighth article of the constitution,—corporations which were there construed to include all associations and joint-stock companies having any of the powers or privileges of corporations not possessed

The next question is whether the act conflicts with section 6 of article 1 of the constitution, which provides that private property shall not be taken for public use without just compensation. This question is incidental, and it is, at least, doubtful whether it goes to the root of the general authority conferred by the act. It may, however, be briefly considered. Section 40 directs the rapid transit board to prepare maps or plans of the lands and property necessary to be acquired, or to which there may be appurtenant rights, terms, easements, franchises, or privileges necessary to be acquired, for the construction of the road; specifying upon the maps or upon accompanying memoranda the exact estate or interest requisite. One set of the maps and memoranda is directed to be filed with the department of public works, or other chief executive department having charge of the streets, and one with the register or county clerk. Provision is then made for the appointment of commissioners of appraisal, and they are required to take their oath, and file it in the office of the clerk of the county. Upon the filing of this oath, it is provided (section 47) that the city shall at once become seised of all the lands, estates, and interests described in the maps and memoranda, and have the right to enter into possession of the same, but that it shall become forthwith liable to the owners of the same “for the true and respective values thereof, together wfith interest from the time of filing the said oath,” etc. It is, however, provided, that “no action shall be brought to recover the amount of such value or interest unless, within eighteen months after the filing of such oath, a report shall not have been duly made by commissioners of appraisal as herein provided, or such report shall not have been confirmed by the supreme court as herein provided, so that the city shall be liable to forthwith pay the amount by such report ascertained to be due for such value or interest.” Sections 48 to 52 prescribe for the taking of testimony by the commissioners, and the confirmation of their report by the special term of the supreme court. Section 53 makes it obligatory upon the city to pay any award within four calendar months from the time of the confirmation of the report, with interest from the date of the filing of the oath. In default of such payment, the owners are permitted

The remaining points may be briefly disposed of. The office of rapid transit commissioner was not in existence at the time when the constitution which is said to have been violated by the manner in-which the present rapid transit commissioners were appointed went into effect. It has been repeatedly held that the provisions of this constitution with regard to the election or appointment of city, town, or village officers related solely to offices which were in existence at the time of its adoption. People v. Palmer, 52 N. Y. 83 ; People v. Draper, 15 N. Y. 532 ; People v. Pinckney, 32 N. Y. 377 ; Fire Dept, of New York v. Atlas S. S. Co., 106 N. Y. 566 , 13 N. E. 329 . As to officers whose offices might thereafter be created by law, the provision was that they should be elected by the people, or appointed as the legislature might direct. As to such new offices, it has been held that the legislative power is not in any wise restricted; that it embraced all offices of every description, both local and general; and that the legislature was authorized to confer the power of appointment even upon such bodies as the chamber of commerce, and upon such persons as the presidents of marine insurance companies. Sturgis v. Spofford, 45 N. Y. 446 . In this case, Church, C. J., said:

“It is insisted that the power of appointment can only be conferred upon some body or officer representing or responsible to the people. The language of the constitution does not justify this position. The power is not restricted. * * * The omission of any direction as to the appointment of such officers is significant of the intention of the framers and the people to leave the unrestricted power in the legislature.”

This unrestricted power carried with it as an incident the power to appoint directly as well as through some other agency,—a power which has been repeatedly exercised without question, notably in Ré Commissioners of Central Park, 35 How. Prac. 255 (Laws 1857, c. 771), and in the Case of the Aqueduct Commissioners, where vast

It is also claimed that the legislature had no authority to provide a referendum to the people of the city. It has, however, been abundantly settled that there is no constitutional objection to an enactment referring to a municipality or other civil division of the state the question whether it desires the passage of a statute particularly affecting it. Bank of Borne v. Village of Rome, 18 N. Y. 38 ; Starin v. Town of Genoa, 23 N. Y. 439 ; Bank v. Brown, 26 N. Y. 467 ; Clarke v. City of Rochester, 28 N. Y. 605 .

Lastly, there is nothing in the act which can be said to allow the city or the commissioners to enter into a contract in violation of the provisions of section 10 of article 8 of the constitution, to the effect that "no county or city shall be allowed to become indebted for any purpose or in any manner to an amount which, including existing indebtedness, shall exceed ten per centum of the assessed valuation of the real estate of such county or city subject to taxation as it appeared by the assessment rolls of said county or city on the last assessment for state or county taxes prior to the incurring of such indebtedness.” It is to be presumed that public officers will do their duty; and one of their first duties is to respect and obey the constitution." The act is not invalid, because under it the commissioners might possibly make a contract which would transgress1 the provision in question; in other words, make an illegal contract in disregard of their duty. The act itself contemplates nothing of the kind, nor does it appear as matter of fact that such a contract will necessarily follow the due execution of the act.

We have thus considered all the questions presented- by the present record, and our conclusion is that the acts in question are not in conflict with any provision of the constitution. The judgment appealed from was therefore right, and should be affirmed, with costs. '

VAN BRUNT, P. J., and WILLIAMS, J., concur.

The question presented on this appeal is whether the provisions of chapter 752 of the Laws of 1894, and chapter- 519 of the Laws of 1895, whereby provision is made for the issue of bonds by the city of New York to pay for the construction of railroads in the city of New York, are in violation of the constitution. 'A majority of the court has determined that it is constitutional for the legislature to require the city of New York to incur an indebtedness which must be repaid by taxation, the proceeds to be used to construct a railway. I dissent from this proposition, and shall endeavor, as briefly as possible, to state the grounds upon which, in my opinion, this legislation violates the express prohibitions of the constitution provided to protect the owners oi to taxation from taxed for the construction

The rapid transit act was originally passed in the year 1891. It was entitled “An act to provide for rapid transit railroads in cities of over one million inhabitants.” As originally passed, it did not appoint a board of rapid transit commissioners, but provided that, in case a board had been appointed under the provisions of a previous act, it should be its duty to devise a means of rapid transit throughout the city for which it had been appointed, and, upon the completion of the plans for that purpose, to put up at public auction a franchise to build a rapid transit railway, and to superintend the building, and to some extent the operation of it, after the franchise had been disposed of. The act further provided for the organization of a corporation to take the franchise, and build and operate the railway, and contained further provisions, limiting and regulating the operation of the road, not necessary to be further considered here. Under that act, the board of rapid transit com

The intent of this act is apparent. Under its provisions, a board of rapid transit railroad commissioners, appointed by the legislature, are authorized to construct in each city of the state containing more than 1,000,000 inhabitants a railroad, upon a majority of the electors of such city voting in favor of such construction, and with the consent of certain local authorities. That vote and the consent of the local authorities having been once given, the nature of the railroad, its extent, its cost, the terms of the contract under which it shall be constructed, and the particular contractors who

But no matter what the defects of this act may be, no matter what liability it may inflict upon the city of New York, no matter how grievous the burden the city will have to bear if it is enforced, if this act is not in conflict with an express provision of the constitution, this court has no power to interfere with it or to declare it void. I fully recognize the rule that the courts do not sit in .review of the discretion of the legislature, or determine upon the, expediency, wisdom, or propriety of legislative action in matters within the power of the legislature. Every intendment is in favor of the validity of statutes, and no motive, purpose, or intent can be imputed to the legislature in the enactment of a law other than such as are apparent upon the face, and to be gathered from the terms of.the law itself. But “a written constitution must be interpreted and effect given to it as the paramount law of the land, equally obligatory upon the legislature as upon other departments of government and individual citizens, according to its spirit and the intent of its framers, as indicated by its terms. An act violating the true intent and meaning of the instrument, although not within the letter, is as much within the purview and effect of a prohibition as if within the strict letter; and an act in evasion of the terms of the constitution, as properly interpreted and understood, and frustrating in its general and clearly expressed or necessarily implied purpose, is as clearly void as if in express terms forbidden.” People v. Albertson, 55 N. Y. 54 .

We have thus to determine whether this act, providing that the money and credit of the city of New York shall be applied to the construction of a railroad under these conditions, violates any of the provisions of the constitution which restrict the power of the legislature.

In the year 1874 there was adopted by the people of this state a provision of the constitution which has continued in force from that time down, and which was readopted in the year 1894. This provision was made section 11 of article 8 of the constitution in 1874. It is therein provided:

“No 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 ox-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.”

To appreciate the force of this prohibition, it should, I think, be taken as a whole, and not considered as if it related to separate subjects. What was it that this provision intended to prevent? An acquaintance with the judicial history of the state will show that prior to this time many towns and cities had issued bonds to

In two cases there has been presented to the court of appeals the question as to the construction to be given to this phrase “city purpose,” in the constitution; and it seems to me that, if we are to apply the principles there adopted in determining just what is a city purpose, then building a railroad under these conditions is within the condemnation of this provision of the constitution. The first case is People v. Kelly, 76 N. Y. 480 . The court had to determine in that case whether or not building a bridge between New York and Brooklyn was a city purpose for the city of New York. The act under consideration in that case allowed the city of New York to obtain the stock of the corporation which had been organized to build a bridge between New York and Brooklyn, either by voluntary purchase or by condemnation proceedings. Upon obtaining that stock, the bridge company was to be dissolved; and, upon the dissolution of the bridge company, the bridge and all its appurtenances should vest absolutely in and belong to the two cities of New York and Brooklyn. The two cities were then authorized to finish the bridge, each city contributing a certain proportion of the cost. It was held in that case that it could not be said that the indebtedness authorized to be incurred by the cities for the construction of the bridge was not for a city purpose. The court, in laying down the principles which were to govern in determining what was and is a city purpose, said:

“It is impossible to define in a general way with entire accuracy what a city purpose is, within the meaning oí the constitution. Bach case must largely depend upon its own facts, and the meaning of these words must be evolved by a process of exclusion and inclusion in judicial construction. It would not be a city purpose for the city of New York to build a railroad from that city to Philadelphia, or to improve the navigation of the Hudson river generally between that city and Albany, although incidental benefits might flow to the city. Such works have never been regarded as within the legitimate scope of municipal government. On the contrary, it would be a city purpose to purchase a supply of water outside of the city, and convey it into the city, and for such a purpose a city debt could be created. So, lands for a park for the health and comfort of the inhabitants of a city could be purchased outside of the city limits, and yet conveniently near thereto. Such improvements are for the common and general benefit of all the citizens, and have always been regarded as -within the scope of municipal government; and so, too, highways or streets leading into a city or village may be improved, provided the improvements be confined within such limits that they may be regarded as for the common benefit and enjoyment of all the citizens. It cannot therefore well be held, as claimed by the learned counsel for the appellants, that what is meant by a city purpose is some work or expenditure within the city limits. There could be no good reason for such a limitation. It could be no worse for a city to incur debt

for a city purpose outside of the city limits than for one within such limits, and there is just as much reason for allowing it to be incurred in the one case as in the other. The cities of New York and Brooklyn are intimately connected in many ways, by business, social, and commercial ties. Thousands who do business in the one city do business in the other. * * * To bridge such a water separating two such cities must be a city purpose of each city. The bridge will be for the common benefit of all the citizens of both cities, and each citizen will have the same right to use it as every other-citizen. It would have been a city purpose if either city had been authorized to build the whole of the bridge, and it is no less so that both are to unite in building it.”

Applying this process of exclusion and inclusion, we find it would not be a city purpose to build a railroad from New York to Philadelphia, and as clearly not a city purpose to build a railroad from New York to Poughkeepsie. It would be a city purpose to improve highways or streets leading into a city provided the improve-. ments be confined within such limits that they may be regarded as for the common benefit and enjoyment of all the citizens. It not being a city purpose to construct a railroad to another city, not because it would not be entirely within the limits of the city attempting to construct it, but because such a work has never been regarded as within the legitimate scope of municipal government, what, then, can be said to bring the construction of a railroad wholly located within a city, or extending from one end of the city to the other, within such scope? Not the fact that it is wholly within the city limits, because that is not the test. The test is that such improvements as are for the common and general benefit of all the citizens, and are within the scope of municipal government, are city purposes. Others are not. A railroad is constructed to the city limits from another city. The city is asked to continue the road from the city limits to the middle of the city, and, áfter such construction, to turn it over to the corporation or individual who has constructed the road to the city limits for its own use. Is it not dear, applying the test above stated, that the construction of such a continuance of the road would be no more a city purpose than the construction of the road beyond the city limits? Such a road would be for the use of the citizens, as would the railroad to be built under this act, viz. those of the citizens who could or would pay for the facilities furnished. Evidently, it might be of much benefit to the city, but it would not be a city purpose, because it would not be for the common and general benefit of all the citizens, and not within the legitimate scope of municipal government.

The question was again presented to the court of appeals in Re Mayor, etc., of New York, 99 N. Y. 584 , 2 N. E. 642 , when the question was as to the power of the city of New York to acquire lands just outside of its border for a public park. In that case it was stated to have been conceded that the acquisition and maintenance of public parks, securing pure air and healthful rest and recreation to the people, is a city purpose when executed within the corporate limits, but it was claimed in that case that it ceased to be a city purpose when to any degree or to any extent it moved outside

“The inquiry as to a park at Niagara or in the Adirondacks remains unanswered. Beyond question, neither would be a city purpose; and, when we have, determined why, we should have approached as near to what is the true test as the nature of the subject will permit. While, as was said in one of the cases cited, it is impossible to formulate a perfect definition of what is meant by a city purpose, yet two characteristics it must have. The purpose must be primarily the benefit, use, or convenience of the city, not a portion of the citizens, as distinguished from that of the public outside of it, although they may be incidentally benefited, and the work be of such a character as to show plainly the predominance of that purpose. And then the thing to be done must be within the ordinary range of municipal action.”

We have here again the test. The improvement must be primarily for the use or convenience of the city, as distinguished from that of the public generally, and then the thing to be done must be within the “ordinary range of municipal action.” Is the building of this railway a thing which is within the ordinary range of municipal action? Never before has a municipality attempted such, an undertaking within our knowledge. And then, again, the avowed purpose of this act, to which attention has been before called, is that this property is not to be acquired by the city hs an absolute owner, so that it would be entitled to the possession, control, or use of the property as for a city purpose for the common benefit of all its citizens, but it is to be turned over to the contractors, who are to use it, control it, and manage it, subject to no city control, and under such'conditions that the city may never receive any consideration for its use for their own benefit and profit. In both of these cases cited, the property, when acquired, was to vest absolutely in the city, and be subject to its control, and to be for the free and uncontrolled benefit and use of all the citizens of the city.

The case of Hequembourg v. City of Dunkirk, 49 Hun, 550 , 2 N. Y. Supp. 447 , is also relied upon by the learned counsel for the respondents. That was a case where the construction of an electric light plant by the city to furnish light for its own streets, and also for its inhabitants, was upheld; but the learned judge, in writing the opinion, expressly placed it upon the ground that the lighting of the streets and public places is one of the duties devolving upon the municipal government, and is a city purpose, within the provisions of the constitution; that the lighting of streets and public places is placed upon the same principle that has upheld the municipal action in obtaining pure and wholesome water for the use of the city. It was there expressly held that furnishing light for private dwellings is a use more of a private nature, and not a duty of the municipality.

Again, we must clearly call to mind the distinction between a public use and a city purpose; and this distinction is emphasized when we consider the difference in the language used prohibiting the state from giving or loaning its money or credit and that used in relation to cities. Article 8, § 10, of the constitution, was adopted at the same time as the provision now in question, and it was there provided: ‘Neither the credit nor the money of the state shall be given or loaned to or in aid of any association, corporation or private undertaking.” This provision might not preclude the state from building a railroad, which would be clearly a public use; but, when the prohibition relates to the subdivisions into which the state is divided for the purpose of local government, the language used is different, and the prohibition is much broader. That prohibition is. not that the credit of a city shall not be used for a private undertaking, but that it shall not be used for any purpose except a city purpose. But the construction and operation of a railroad is not the only business that has been recognized by the law as being of public interest, or as having more or less of a public character. Thus, the establishment of an elevator for the purpose of loading vessels with grain has been so considered (People v. Budd, 117 N. Y. 1 , 22 N. E. 670 , 682); also, the operation and maintenance of a theater (see People v. King, 110 N. Y. 418 , 18 N. E. 245 ). And the power of the legislature to control the keepers of hotels or inns has been frequently applied, on the ground that this use of their property was “affected with a public interest”; and if the public character of the business, or use to which the property is put, controls, I can see no reason why the city of New York should not be compelled to erect hotels to be used for the accommodation of guests, theaters to be used for the amusement of its citizens, elevators to be used by the railroads for loading grain from their cars, stage or cab lines for the carrying of passengers, or for almost any use or purpose which is required for the convenience or amusement of the people. It is solely a question of power, and it seems to me that it is just such a use of public money and public credit that this constitutional prohibition was intended to prevent.

I have laid stress upon the fact that these rapid transit commissioners were appointed by the legislature, and were state officer-», whose duties were not confined to the city of New York alone, but extended over the whole state, applicable to each city of the state

But this provision of the constitution under consideration also expressly prohibits municipal corporations from loaning their money or credit to or in aid of any individual, association, or corporation, and does not this scheme directly violate this constitutional prohibition? If the legislature had provided that this board of rapid transit railway commissioners should make a contract with a named railroad company to build a railway in the city of New York at the contract price as fixed between the commissioners and the railroad company to be paid by the city of New York, and upon the completion of the road the railroad company was to have the exclusive use of the road upon paying to the city a sum of money, would not that be a direct loan of its money or credit by the city of New York in aid of the railroad company? And yet in what essential particular does this act differ from that suggested, except that instead of the legislature designating the corporation or individual who was to receive the money to build the road, and, after the road was built, to receive the right to occupy, maintain, and operate it, the determination of the individual was left to the officers appointed for that purpose? It certainly is not essential that the legislature itself should name the individuals, association, or corporation to whom the money or credit of the city is to be given or loaned. It left the determination of that question to the officers

Even before the adoption of this constitutional amendment of 1874, the power to make such a disposition of public money would have been a matter of serious doubt. In the case of People v. Flagg, 46 N. Y. 401 , the act provided that the town bonds should be issued for the improvement authorized by the act to be made, and the objection there taken was that the legislature had no power to compel the town to incur a debt for such an improvement; but the court held that as to the question of power there was no restriction in the constitution, and that, when power is conceded, the court had no right to inquire into the motives or reasons for doing the particular act. The court then continued:

“The legislation in question is open to serious criticism. It compels a largo, if not extravagant, expenditure of money, and imposes onerous burdens upon the whole people without their consent. If the object of the expenditure was private, or if the money to be raised was directed to be paid to a private corporation, who were authorized to use the improvements for private gain, the question, in my judgment, would be quite different; and in this respect there is a limit, beyond which legislative power1 cannot legitimately be exercised.”

Is not the money to be raised here directed to be paid to a private corporation or individual, viz. the contractors who were authorized to use the railroad for private gain.? And when we have, in addition to the restrictions contained in the constitution as it existed when this view was expressed, the further restrictions adopted by this amendment of 1874, much further limiting the uses to which city money or credit can be applied, is it not apparent that the whole spirit and intent of this limitation upon the power of the legislature to dispose of money raised by taxation is violated, as well as the express terms of the constitution?

I can come to no other conclusion, having given to the determination of this question the utmost care and thought, • than that this whole scheme of a building, by the city, of a railway to be used by private individuals or corporations for their own benefit, is not a city purpose, and was beyond the power of the legislature to authorize. I am therefore constrained to the opinion that this judgment should be reversed.

I concur with Judge IFTGKRAHAM in the conclusion which he has reached, and in the reasons which he has given; but, in view of the importance of the case, I think it is not improper to state, as shortly as may be, some reasons additional to those advanced by him why, in my judgment, the rapid transit act is unconstitutional so far as it authorizes or requires the city to expend its money for the construction of a railroad.

In examining the question, I shall not be unmindful of the rules

The section of the constitution, so far as it is material to the consideration of this case, provides that no 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. * * '”' Nor shall any such county, city, town, or village be allowed to incur any indebtedness, except for county, city, town, or village purposes. The question, as presented by this record, upon this branch of the case, is whether the building of a railroad within the limits of any city of the state by the government of that city is a city purpose, so that it may be permitted to be done within the, prohibition of this section of the constitution. In examining this act, it must not be forgotten that this is. not a special city act, passed solely to affect the city of New York, but that it is a general law. Such is its necessary construction, within the rules laid down by the court of appeals (In re Church, 92 N. Y. 1 ; People v. Squire, 107 N. Y. 593 , 14 N. E. 820 ); and such is the construction given to it by the majority of the court. That this construction is correct, and that the act is intended to be a general act, necessarily appears from the manner of its amendment in 1895. At that time the constitution provided that no special city law should become operative until it had been approved by the mayor of the city to which it applied, or by the mayors of the several cities to which it applied, if such cities were not all in one of the classes arranged by the constitution. Const, art. 12, § 2. As this act applied to only a part of the cities of the first class, and not to all the cities of any class specified in the constitution, therefore, if it was a special city act, and not a general law, the act of 1895, amending it, could not become operative until it had been accepted by the mayors of each of the cities to which it applied. The act was amended in 1895 in very important matters. In regard to these matters it is .claimed by the board of rapid transit commissioners, and it is conceded on all hands, that the amendments were valid and operative, which could not be the case if it was a special law, unless the amendments had been accepted by the mayor of the city of New York. This was not done in that year. We are justified, therefore, in saying, as is said by the majority of the court, that this act is a general act, and that it is applicable not only to the city of New York, but to every other city in the state just as soon as that city shall come within its description. It is quite true that no other city is now within the description of those mentioned in the title to the act, but it is equally true that by the next census at least one other city will be within its description, and it is more than probable that, before a second census shall take place, a third city will be competent to come under its provisions. The act, therefore, cannot be construed as though it were applicable simply to the city of New York, but it must be examined in view of its appli

As we have seen, the act substantially gives to the city the power, at the will of its inhabitants, to incur an indebtedness for the building of a railway which, when built, shall not be operated by the officials of the city for the benefit of the city, but shall be operated by a corporation for its own profit, upon payment of a, rent, which corporation shall have the entire and exclusive control of it, free from the right of interference on the part of the city, or of any of its officials, just as long as the rent shall be paid. While this is the necessary effect of the act, yet it is proper to say that no stress will be laid, in this opinion, upon the fact that the road, when built, shall be operated by a corporation which shall have exclusive control of it; but the discussion will proceed entirely upon the theory that that of itself is immaterial, and the question argued will be whether it is a city purpose for a city to construct a railroad within its own limits, no matter whether that railroad is to be operated by the city officials or by some corporation for its own profit and advantage.

As might be expected, there is neither in this state nor anywhere else any decision or authority on that subject. The case of People v. Kelly, 76 N. Y. 475 , has been cited as an authority upon the question presented; but a careful consideration of that case shows that no such question was or could have been presented to the court. In that case, by the laws of 1867 and 1869, a corporation was organized to build the Brooklyn Bridge, and the cities of New York and Brooklyn were atithorized to become the owners of the stock of that corporation. In 1874, the bridge having been partly completed, and the corporation being unable to finish it, the legislature empowered the cities of New York and Brooklyn to become the owners of all the stock, and to complete the bridge, and abolished the corporation which had existed before then. This act prescribed a limit of the cost of the bridge. After the two cities had assumed the construction of the bridge, an application was made by the board of bridge trustees for a mandamus to compel the comptroller of the city of New York to pay over to the trustees, pursuant to the statute, to apply upon the expenses of construction, a certain amount of money, which was within the amount to be paid by that city. This was resisted by the comptroller, upon the ground that it appeared that the bridge could not be completed within the limit of the amount of 'money which the act had authorized to be expended for that purpose. The question presented to the court was, in the first place, whether the limit of cost of the bridge as prescribed in the act was a restraint upon the powers of the board of bridge trustees, so that they would not be permitted to go on with the construction of the bridge when it became apparent that it could not be completed for the-sum allowed. After the passage of the act of 1874, the constitutional provision which has been quoted above had taken effect, and the further question was presented to the court, under that provision, whether the building of this bridge was a city purpose. That question was, as stated

Ho other case is cited which either precisely or by fair inference is conclusive upon the case at bar, and we are therefore compelled to examine the question practically as a new one. While this is so, yet we are not without expressions of judicial opinion by the highest court of this state as to what must be considered in examining the question whether any given use is a city purpose. In the case just cited, it is said by Judge Earl that “each case largely depends upon its own facts; and the meaning of these words [a city purpose] must be evolved by a process of exclusion and inclusion in judicial construction.” He says that it would not be a city purpose for the city of Hew York to build a railroad from that city to Philadelphia, or to improve the navigation of the Hudson river generally between that city and Albany, although incidental benefits might flow to that city. Such works have never been regarded as within the legitimate scope of municipal government. On the contrary, he says it would be a city purpose to purchase a supply of water outside of the city, and convey it into the city, and for

The same question came again before the court of appeals in Re Mayor, etc., of New York, 99 N. Y. 569 , 2 N. E. 642 . That was an application of the mayor of the city for an order to appoint commissioners to appraise lands to be taken for a public park for the city of New York, in the county of Westchester, outside the limits of the citv. The application was opposed upon the ground that the taking of the land for a park outside of the limits of the city was not a city purpose, and therefore the city had no right to incur the indebtedness. The case was decided substantially upon the authority of People v. Kelly, above cited; but Judge Finch, in delivering the opinion of the court, took occasion to examine somewhat into the meaning of the uhrase “a city purpose,” although he, too, declined to attempt to define it. It was conceded in that case that the taking of lands for a park inside the city was a city purpose, and the question discussed was whether it ceased to be a city purpose when the lands sought to be taken extended in any degree outside of these boundaries. In deciding the question, Judge Finch says:

“While it is impossible to formulate a perfect definition of what is meant by ‘a city purpose,’ yet two characteristics it must have: The purpose must be primarily for the benefit, use, or convenience of the city, as distinguished from that of the public outside of it, although they may be incidentally benefited, and the work be of such a character as to show plainly a predominance of that purpose; and then the thing to be done must be within the ordinary range of municipal action.” 99 N. Y. 590 , 2 N. E. 651 .

This opinion of Judge Finch was concurred in by all the judges who took part in the decision. It has been followed more than once since, and it must be regarded as an authoritative statement by the court of appeals of two essential elements which are required to constitute a city purpose in order that indebtedness may be contracted by the city for it.

When the court say that the thing done must be within the ordinary range of municipal action, it is meant, I suppose, that it must be a thing intended to attain the objects for which cities are primarily organized. It is not intended to say by that phrase that a city can do nothing which it or some other city has not done

If the power to build a railroad is to be regarded as a city purpose, it can only be so if it can be ranged within one of the classes above mentioned. This act is a general act, and,' if the purpose therein expressed is a city purpose for the city of Yew York, it is equally a city purpose of any other city, within its purview or within the state. The legislature were not called upon to limit the operation of this act to cities of a million of inhabitants, any more than they were called upon to limit the operation of the street-railway act to those cities; but, if the building of a railway is a city purpose for one city, it must be equally a city purpose for any city within the boundaries of the state. Indeed, if it can be said to be a city purpose to transport by artificial means the people of one city from one place to another for their business convenience or pleasure, I am utterly unable to conceive why it is not equally a town purpose to build railroads from one extremity of the town to the other, that those living at one end of a large town may more conveniently market their products or do their business at the customary place than they would with the present means of communication. But the argument of convenience proves too much. If the municipal corporation can be authorized to do whatever may merely enhance the convenience of any large portion of its people, under the pretense that it is a city purpose, it is difficult to see where the right of incurring indebtedness will stop. It would be

The duty of establishing highways is undoubtedly devolved upon the different municipal corporations of this state by the legislature, and is a public purpose; and it may fairly be said, I think, that the establishment of a highway within the limits of a city, although primarily a duty of the state government, is yet a city purpose. But every public purpose to be exercised within the limits of a city is not necessarily a city purpose. The building of a capítol in the city of Albany, for the use of the officials of the state, was a public purpose, for which lands might be taken, in the exercise of the right of eminent domain; and yet no one would claim that that was a city purpose, and that the people of the city of Albany could be compelled to pay their money to do it. So the building of fortifications for the protection of the city of New York or the city of Buffalo is no doubt a public purpose of grave importance to the people of those cities, respectively, and yet no one would claim that the building of such works within tire limits of those cities was a city purpose, for wMch the city could be made to pay. Cooley, Const. Lim. 219. These two examples are illustrations of the necessity of confining the definition of a city purpose to something which is within the ordinary range of municipal action. Undoubtedly, it is within the ordinary range of municipal action to build a highway; and if this railroad can be said to be a highway, within the ordinary definition of “highways,” and adaptable to the same purposes for which highways are usually used, it may fairly be said to be a city purpose; but unless it is either a highway in the same sense as an ordinary street, or unless it is within the purpose for which highways are ordinarily constructed by a city, it clearly is not a city purpose. .

As is said by Judge Peckham in the case of Eels v. Telegraph Co., 143 N. Y. 133 , 38 N. E. 202 :

“The primary or fundamental idea of a highway is that it is a place for uninterrupted passage by man, animals, or vehicles, and a place by which to afford light, air, and access to the property of abutting owners, who, in this respect, enjoy a greater interest in the street than the general public, even though their title to the land stops with the exterior line of the street. It is not a place which can be permanently and exclusively appropriated to the use of any person or corporation, no matter what the business or object of the latter might be.” 143 N. Y. 140 , 38 N. E. 204 .

At an early day in the history of this state, it was claimed that a railroad was only a different kind of highway, and using the highway for that purpose was only a different mode of exercising the right which had been acquired by 'the people. But, as was said by the court of appeals, the argument met with no favor from the court. The proposition was promptly and clearly denied; so clearly that since that time no well-considered case has ever attempted to renew it. Trustees of Presbyterian Soc. v. Auburn & R. R. Co., 3 Hill, 567 ; Williams v. Railroad Co., 16 N. Y. 97 , 104-109. If there is anything clearly settled in this state, it is that there is a vast difference, not only in circumstances, but in principle, between the use of land for an ordinary street and that for a railroad. Indeed, the circumstances ’ under which highways are constructed show that such must be the essential right attached to them. It is necessary for the existence of civilized society that all men should have means by which they may communicate with their neighbors, and perform their public and private duties as citizens. This necessarily requires them to go from their homes to the places where such things are to be done. To enable them to do that, it is absolutely essential that some way should be established over which every one of them may have the right to go. This, in the nature of things, can be done only by the government, which has the right to acquire land necessary to give the right of way from one place to another. I apprehend that upon this necessity lies the foundation of the power of the state to build and maintain highways and bridges and ferries. But, when those means of communication are established, the duty of the state has been done. If business convenience requires a more rapid means of transportation

If I am right in this conclusion,—and I see no escape from it,— the power of a city to build a railroad within its limits cannot be (tailed a “city purpose,” within the authority which it has to lay out and construct highways. I can find no other object among those for which municipal corporations are organized to which this power can be attributed. The cases above cited hold that it is within the power of the state to impose upon a highway the additional burden of a railroad,' but they do not hold that the state can build it; and, if the state has that power, it does not follow that a city has it, because there is no constitutional prohibition in that regard upon the legislature. Unless the power to build this railroad can be said to be a city purpose under the duty which has been imposed upon a city to lay out and- construct highways, I am utterly unable to see from what other one of the purposes for which municipal governments are organized it can be derived. This power must stand, if at all, upon the broad proposition that it is within the proper scope of the duties of a municipal corporation to do within the limits of the city whatever may add to the convenience of any large portions of the citizens in the transaction of their business, or which will to any considerable extent increase the value of any portion of their property. Indeed, as I understand

As is said by Judge Dillon:

“To clothe these corporations with powers to accomplish purposes which can better be left to private enterprise is unwise. Their chief function should be to regulate and govern. To invest them with powers of individuals or private corporations for objects not pertaining to municipal rule is to pervert the institution from its legitimate ends, and to require of it duties which it is not adapted satisfactorily to execute.” Dill. Mun. Corp. § 12.

The constitution says that no city shall contract an indebtedness for the purpose of performing such duties. That provision of the constitution was adopted at a time when municipal corporations throughout the state were incurring large indebtedness by investments in the stock and bonds of private corporations organized for precisely the same purposes as are sought to be attained here. It was intended by that amendment that the debts of cities should he confined to purposes which were purely municipal.

It is quite true that for over 200 years the city of New York has owned and controlled the docks along the water front, and tin; ferries extending to the places on the opposite side of the rivers which bound it, and that it has leased these ferries and docks 1o private individuáis; hut it must be recollected that, long before the constitutional prohibition now in question was adopted, this property was the private property of the city of New York, and that provision of the constitution was not intended in any -,vr' to affect the management by the city of its private property. Bui. even were that not so, the erection and control of docks and the management of ferries has always been a public purpose, which it is within the power of the legislature to devolve upon any municipal corporation precisely as it has devolved upon them the duty of building highways. It is conceded that this act is a departure from and an advance beyond all previous legislation, in that it gives to the cities mentioned in it powers which they have not heretofore exercised. It seems to me, as I have endeavored to show, that this power is not only outside the ordinary range in which municipal corporations have thus far acted, but it extends their powers fur

For these reasons, and within the rules which have been laid down by the courts, and the necessary inferences to be made from them, I believe that the purpose to be accomplished by this acjt is entirely outside of the ordinary range of municipal purposes, and cannot be said to be a city purpose, and no city can be pern.:tied to contract an indebtedness to do it. For these reasons, in addition to those stated by Judge INGRAHAM, I am compelled to dissent from the majority of the court