People ex rel. Everson v. Lorillard

—The order in this case which has been brought here for review directed a peremptory writ of mandamus to issue to the corporation counsel of the city of New York, requiring him to take charge of and conduct with all practicable speed any and all proceedings, authorized by law, for the appointment of commissioners of appraisal to ascertain the compensation to be paid to the owners or persons interested in certain. real estate, designated upon a triplicate map made and filed in pursuance of chap. 249 of the Laws of 1890, and to fix the time and place for the first meeting of the commissioners so appointed. The general term having affirmed the order, the corporation counsel has appealed to this court and the sole ground of the appeal is that the second section of the act above mentioned is in conflict with § 17 of article'8 of the constitution of this state which declares that: “ No act shall be passed which shall provide that any existing law or any part thereof shall be made or deemed a part of said .act, or which shall enact that any existing law or any part thereof shall be applicable, except by inserting it in such act.”

The act, chapter 249 of the Laws of 1890, provided for the acquisition and improvement, by the city of New York, of certain lands in connection with Washington bridge, over the Harlem river, and the second section, or that part of it which requires action to that end to be taken by the authorities of the city of New York, is as follows: “ The said commissioners, on behalf of the mayor, aldermen and commonalty of the city of New York, shall thereupon apply forthwith to the supreme court, at any special term thereof held in the first judicial district, for the appointment of three disinterested persons, residents of the city of New York, as commissioners of appraisal, to ascertain and appraise the compensation to be made to the owners and all persons interested in the real estate shown on said profile maps, which shall not have been theretofore acquired by the city of New York, for the fee of the same. Such proceeding shall he had upon the said application, except that the same shall he in the first judicial'district, as are provided for the acquisition of real estate hy chapter I¡90 of the Laws of 1883, and with the like effect; and all payments for the real estate so acquired, and for the charges and expenses of acquiring the same, shall he made in the manner in which such payments are to he made, and out of the moneys therefor to he raised, as provided in said last mentioned act.”

Section 3 then provides that the property acquired, with the improvements thereon, “ shall be kept and maintained by the department of public parks as public parks and highways, and for no-other purpose except the Croton aqueduct; and the expenses thereby incurred shall be paid in the manner provided by law for' the payment of the other expenses of the said department;”

The difficulty suggested with respect to this statute is that while-

It is somewhat difficult to give to that provision of the constitution, invoked in this case to condemn the legislation in question, a reasonable construction that would be applicable in every case. A provision of the fundamental law_ which attempts to regulate the form in which the legislative will is to be expressed in the enactment of laws is difficult of a just and reasonable application in all cases, and is at best of very doubtful utility. When the organic law has fixed the limits of legislative power and has placed some general and suitable restraints upon its methods of procedure, its proper office is generally fulfilled, but an attempt to prescribe the language or the forms to be used or observed by the legislature in the enactment of statutes must inevitably result, either in the condemnation of numerous legislative acts, perfectly wholesome and just, or in the liberal exercise by the courts of their undoubted powers to give to all laws a just and rational .construction and meaning. A constitutional provision intended to operate as a restraint upon the legislature, with respect to the language and forms of expression to be used in framing acts of legislation, is not to be so construed as to embrace cases not fairly within its general purpose or policy, or the evils which it was intended to correct, though they may be within its letter. • Since the incorporation of this section in the constitution of 1875, hundreds of statutes have been passed that must be held to be in conflict with it if we adopt that construction contended for by the learned counsel who argued in support of this appeal. There are many general acts conferring very important powers or imposing important duties to be exercised or performed according to some provision of the Code or some statute, general or local, which contains the appropriate procedure for such a case. There are also many local acts applicable to cities and other public corporations authorizing the issue of bonds or the raising of money according to the general provisions of the charter. Still others may be found, both general and local, conferring powers upon private corporations to contract debts in the manner provided in some other law. To hold that all these acts are void, as in conflict with this provision of the constitution, would be to' disturb titles, promote litigation and inflict wide spread injury. The worst evils that the framers of the provision could have had in view would be multiplied a hundred fold by such a construction. A constitutional provision, like a statute, should not be so construed as to ■work a public mischief unless the language used is of such ex

Can it be affirmed with any reason or probability that the legislature was not, when it passed the act of 1890, familiar with the act of 1883 for the. construction of the aqueduct- and acquiring-lands therefor ? Is there any reason to believe that when the legislature' enacted that lands in connection with Washington bridge might be acquired and paid for by the city of New York for use as a park in the same way as was specifically provided in the aqueduct act, it was imposed upon by some of the devices against which the constitutional provision was intended to guard ? There is nqthing on the face of the bill and nothing suggested in the manner of its enactment that would justify such a conclusion. In the Banks case, supra, this court further said, with reference to the proper construction of this provision of the constitution : “It is not necessary, in order to avoid a conflict with this article of the constitution, to re-enact general laws whenever it is necessary to resort to them to carry into effect a special statute. Such cases are not within the letter or spirit of the constitution, or the mischief intended to be remedied. By such a reference the general statute is not incorporated into or made a part of the special statute. The right is given, the duty declared or burden imposed by the special statute, but the enforcement of the right or duty,, and the final imposition of the burden are directed to be in the form, and by the procedure given by the other and general laws; of the state. Reference is made to such laws, not to affect or-qualify the substance of the legislation, but merely for the formal: execution of the law.”

The learned counsel for the corporation, conceding the propriety of the rule here laid down, insists that it goes no further than-to permit a reference in the enactment of a statute to some other-general law for the purpose of pointing out the proper procedure; It is true that the reference in that case was to a general law, and the language of the court conformed to the nature of the case under consideration. But there is no reason to believe that if the-reference in that case had been to a local statute that the decision would have been otherwise, as such a distinction would have no-support in reason or authority. This appeal cannot be sustained without holding in effect that every statute, general or local, must contain within itself every detail necessary to its complete ex ecu-

When a statute in itself, and by its own language, grants some power, confers some right, imposes some duty, or creates some burden or obligation, it is not in conflict with this constitutional provision, because it refers to some other existing statute, general or local, for the purpose of pointing out the procedure, or some administrative detail, necessary for the execution of the power, the enforcement of the right, the proper performance of the duty, or the discharge of the burden or obligation.

In this case the main object of the statute was to confer power upon the city to acquire lands for a certain purpose and that power is expressed in appropriate language, but the procedure, by means of which the lands were to be condemned, and the administrative acts on the part of the city authorities, necessary in order to procure the money for the payment of the awards, are designated by reference to another statute. Granting that the ■aqueduct law was local, as urged by the counsel for the corporation, still it was an act of such great public importance that the members of the legislature might be supposed to have been even more familiar with all of its provisions than with many general laws. The statute in question did not provide literally that the aqueduct law should be made or deemed a part of it, nor that any part thereof should be applicable, but that the proceedings for condemning the lands and raising the money to pay for them should be the same and, hence, the statute cannot well be held to be repugnant to the letter and much less to the spirit and object ■of the constitutional provision. Whether the city authorities, and ■especially the corporation counsel, were vested with discretion with respect to the execution of this statute, in the sense that they could not be compelled to move by mandamus, is a question not argued and which all the parties have evidently intended to waive.

All concur, except Earl, Ch. J., not voting.