Sun Printing & Publishing Ass'n v. Mayor

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

Uuless, 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 contribute to the convenience, of the people of the city at large. Within that sphere of action, novelty should impose no veto. Should such inventive genius by and by create a system for supplying us with pure air, will the representatives of the people be powerless to utilize it in the great cities of the state, however extreme the want and dangerous the delay? Will it then be said that pure air is not as important as pure water and clear light? We apprehend not. The illustration may seem fanciful to-day, but who shall say that peculiarly local conditions may not arise which will make it a vital question hereafter? •

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 may take judicial notice of the city’s history in this regal’d. 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 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 it not the province of the court to deny the legislative power to

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, does the other. Not only that, but one of the chief uses of the bridge was arid is for railway purposes. Section 7 of chapter 300 of the Laws of 1875 provides as follows: “The said trustees may operate and authorize to be operated a railroad or railroads over said bridge, and fix the fare to be paid by any passenger on any railroad operated by them.” It would be a strange result if a city might build a railway over a bridge to another city, and might not build a railway in its own streets, and wholly within its own limits. It is plain that .this bridge case repudiates anv distinction between bridges and railways, due to city ownership of the former in the past. If it had been intended to sanction such a distinction, certainly the fact would have been pointed out that there had been such ownership of bridges; and the objectionable railway feature would have'been adverted to, and held to be merged in, and subordinated to, the lawful bridge project. But the opinion is quite silent on these points. ‘ There are, however, many expressions in the opinion which favor our present view. “It is impossible,” said Judge Earl,- “to define in a general way, with entire accuracy, wha,t a city purpose is, within the meaning of the constitution. Each 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- im~. prove the navigation of the Hudson river generally between that city and Albany, although incidental benefits might flow to the eitv:” That illustration marks the test which was in the learned judge’s mind. Would he have thus spoken of a railroad from one point to another within the city limits? Such a railroad,

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 on© of them more than another. The investment of their funds in this manner was simply a speculation, which was generally profitable. 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, chap. 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 private capital was disposed to leave unremedied, the obnoxious element of paternalism, or of competition by a city with its citizens in the business walks of life, entirely disappears; and we find, not as contended, the entering wedge of socialism, but simply novel municipal' work, undertaken under the stress of dire necessity. Finally, it should be said that, if any doubt exists as to whether or not this is a city purpose, it must be resolved in favor of the legislative action. In' this, as in all questions involving the constitutionality of a statute, every intendment is in favor of validity. The legislature has, in effect, declared the purpose to be a municipal one, and its judgment must govern unless clearly erroneous.. People v. Kelly, 76 N. Y. 489 ; In re Mayor, etc., of New York, 99 id. 591 ; 2 N. E. 642 . The language of Judge Earl in People-v. Kelly is again most instructive, and we think conclusive: “The legislature,” he says, “when legislating in view of this oonstitutional limitation, must determine, in the first instance, what it a municipal purpose. Its decision is not, however, final. When its act is challenged as in conflict with this constitutional limitation, the courts must determine whether debt is authorized to be incu rred for a purpose not municipal. But, as the dividing line-between what is a municipal purpose and what is not is in many cases shadowy and uncertain, great weight should be given by the courts to the legislative determination, and its action should not be annulled unless the purpose appears clearly to be one not an

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 a 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 purposes 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, chap. 152, § 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 constitutionally appointed, they are as much municipal agents as though they were appointed by the mayor. We do not mean municipal agents for the performance of corporate duties; that is, municipal agents for whose misfeasance or nonfeasance there would be a corporate liability. We mean municipal agents to effect the public purpose decreed by the sovereign power.

Whether public officials or 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; that 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 well 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 variations as to certain local officials. The functions of these board's are strictly local. Their primary

The language of Judge Earl in the case of Mayor, etc., of New York v. Tenth Nat. Bank, 111 N. Y. 454 ; 16 St. Rep. 273 , is quite applicable here. Speaking of the commissioners of the New York county courthouse, that learned judge said:

“The commissioners appointed to build it were 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 reasons, it was held in People v. Civil Service Supervisory & Examining Boards of City of New York that employes 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. Andrews, 104 N. Y. 574 ; 3 St. Rep. 547 . It was there-held that, while excise commissioners may be in one' sense (and that a technical one) state officers, they came within the purview of anací which declared that all appointments to office in the city of New York should be made by the mayor without confirmation. This was put upon the ground that their duties, although affecting the general public, were to be performed within the same limits as those which confine the municipality.

Thus, the rapid transit board was an agency provided for the •city by the legislature for a public purpose, especially affecting

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, chap. 752, § 9, as amended by Laws 1895, chap. 519, § 30. How this latter provision shall be eff-ectuatol, whether by a long lease or a short lease, by a lease with this covenant or that covenant, by a lease with or without a provision for renewal, by an individual lessee or a corporate lessee, or by no lessee 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 direction on that head surely did not make or unmake the essential faction 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, when 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, and yet to keep the road out of the dark domain of local political activity. To accomplish this, it has placed the contractor as a breakwater between the city and an evil far greater than that which it was implored to remedy. Has the adjudged purpose ceased to be a city purpose for that reason? H not (and, surely, no one will

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 carry out said contract, for the construction of such road arreada, upon the routes, and in accordance with the plans and specifications so adopted, for such sum er sums of money, to be-raised and -paid ouit 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' hoard 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 own cost and expense, equip, maintain and operate said road or roads for a term of years to be specified, not less than thirty-five, nor more than fifty, year's, and upon such terms and conditions as to the rates of fare and the character of service to he furnished, and otherwise as said hoard 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 ease 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

Subsequent portions of the section direct that (the contractor ¿hall 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 covenante 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 he 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 tire rent and all other charges and expenses, and being liable for and 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 3 6 directs advertisement for proposals. Section 37 directs the issuance of bonds to pay for construction, not to exceed $55,000,000 such bonds to he charged fro-n taxation.

The argument against the plan outlined above would appear to he 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 vain-. able attribute of ownership. The length of the lease is such as practically to confer title in fee. The renit is merely nominal. Consequently, the city builds the road, and substantially pre

“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 to he 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.”

Their second proposition is entitled to more serious consideration. Does the act contemplate a loan of the city’s money or cromt to or m 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 Avas 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 Avhen 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 pre-. served, 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.”

Hoav, 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 profits 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, Ave have a direct contract to lease the road Avlien built for a sum to be like-Avise 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 Avhen 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 OAvn obligations. Shall we, then, go behind the legislative declaration, and inquire Avhether its, at least, superficially innocent language Ava-s meant to cloak a design to Adolate the constitution? That would be to treat a legislative -enactment as we Avenid the acts of individuals in a suit to set aside those acts as fraudulent. The courts cannot thus probe the legis

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 hy 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 he 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 hot say that a law may not he so palp'ably 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 net 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 fides of that body in discharging its duties.”

The latter language was cited with approval in Re Hew York El. R. Co>., 70 H. Y. 327, at page 351, where Judge Earl said that “it is not the presumed 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 hut 'One elevated railway in actual operation in the state at the time of the passage of the act. “How are we to know,” said Judge Earl, “that there was hut one in operation at the time of the passage of the act? Can a court take proof for the purpose of showing a statute valid and regular upon its face to he unoonstatutional? * * * We do not know, and we cannot assume that there was hut one elevated railway in actual operation in this state at the time of the passage of the act.” The learned judge quoted with approval from the opinion of Allen, J., in People v. Albertson, 55 N. Y. 50 , that “no motive, purpose, or intent can he imputed to the legislature in the enactment of a law other than such as are apparent upon the face, and to he gathered from the terms, of the law itself.” Summing up the result of this reasoning, the court concluded as follows:

“It may he 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. F'or 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 to1 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 acf 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 nnj ust. 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.

The next question is whether the acts violate Const, art. 3 § 18, providing that the legislature “shall not pass a private or local ■ bill * * * granting to any corporation, association or individual the right to lay down railroad tracks.” Section 1 of the act provides that “in each city having over one' million of inhabitants, according to the last preceding national or state census, there shall be a board of rapid transit railroad commissioners.” The claim is that Hew York city is the only city to which this section could possibly apply, and that consequently the act is local. Whatever might be our views of this question were it

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 tire 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 ref-éred 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 by individuals or partnerships; in other words, eorpo-ratio-nsoreranized by individuals, in one sense, it may he, for the benefit of the public, but directly for the benefit of their promoters and stockholders. These corporations are the same as those referred' to in section 10 of article 8 of the constitution. This section, as we have seen, prohibits "any city—that is, any municipal cor

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 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 he 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 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 c-nee become seised of all the lands, estates, and interests described in the maps and memoranda, and have the light 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 with interest from the time of filing the said oath,” etc. It is, however, provided, that “no action shall he 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 hv the supreme court as herein provided, so that the city shall be liable to forthwith pay the -amount by such report ascertained to he due for such value or interest.” Sections 48 to 52 prescribe for the taking of testimony by the commissioners, and the confirm- ' ation 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 ; o-f the report, with interest from the date of the filing of the oath. , In default of such payment, the owners are permitted to bring 1 an action to recover the amount, “in which it -shall be sufficient to declare generally for so much money due to the plaintiff or

. The remaining points may he 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 id, 532; People v. . Pinckney, 32 id. 377; Fire Dept. of New York v. Atlas S. S. Co., 106 id. 566. As to officers whose offices might thereafter he created by law, the provision was that they should he 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 commence, 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 tire power of appointment can only he 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 apoointment 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

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 ref earing 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 Rome v. Village of Rome, 18 N. Y. 38 ; Starin v. Town of Genoa, 23 id. 439; Bank v. Brown, 26 id. 467; Clarke v. City of Rochester, 28 id. 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 of 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 transgress the provision in question; in other words, malee 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.

VAH BRHHT, P. J., and WILLIAMS, J., concur.

(dissenting).—The question presented on this appeal is whether the provisions of chapter 572 of the Laws of 1894, and chapter 519 of the Laws -of 1895, wherebv provision is made for the issue of bonds by the city of Hew York to pay for the construction of railroads in the city of Hew York, are in violation of the constitution. A majority of the court has do

The rapid transit act was orisrimlly 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,

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 hem 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 shall be employed, are to be determined by the said board, over whom the municipal authorities have no control. As part of the contract for construction, the board must make a lease of the railway, when completed, to the contractor, for a period of at least thirty-five years. As to the terms of that lease and the rent to be paid, the city has no control; and, during the continuance of that lease, by no possibility can the city ever acquire the possession, use, occupation, or any power -or authority over the road. In case the contractors, shall fail to pay the rent or fulfill the conditions of the contract, it is the board of rapid transit commissioners who take possession of the road, and either operate it themselves or lease it to others to operate, with no power in the city to regulate the conditions or terms or rent to be received. In such case the power of the board of rapid transit is unlimited. As in case of such failure on behalf of the contractors, the rapid transit commissioners may either operate the road, or lease it to others, for such price as they may fix in their discretion. And, by the express terms of the statute, this contract may provide for renewal or renewals of such lease, so that the lease may be a substantial perpetuity, with no right of the city to obtain any control over or possession of the property, or any light of any kind over it except to receive the rent that the rapid transit commissioners may deem best to impose upon the contractors. Xo officer of the city, nor the municipal corporation itself, under such a lease, would ever acquire the possession or control of the -pro-pertv: nor would the city have the right to have

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 grevious 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 mat-tens within the power of the legislature. Every intendment is in favor of the validity of the statutes, and no motive, purpose, or intent can he imputed to the legislature iu 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

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

In the year 1874 there was adapted 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 of 1874. It is therein provided:

“Ho 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 indirectely, the owner of stock in or bonds of any association, or corporation, nor shall any such county, city, town or villagfe 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, he taken as a whole, and not considered as if it related to separate subjects. What was it that this provision intended to pre-' vent? An acquaintance with the judicial history of the state will show that .prior to this time many towns and cities had issued bonds to aid in the construction of railroads under legislative authority, and it had been discovered that towns and cities had thus incurred large obligations, which were extremely onerous, and which returned to such towns and cities but small benefits in comparison with the burdens. So far as is known, it had not then been suggested that any city would engage in the building and owning of railroads itself; but railroad corporations had been able to obtain from cities and towns, in exchange for stock or bonds of the railway companies, city and town bonds, the proceeds of which had been applied to the purposes of the railway corporations. It was this condition that confronted the framers of this constitutional provision, and it seems to me that its obvious intent was to prevent the cities and towns of the state from investing their money in such enterprises. The provisions are broad. “Ho county, city, town or village” could give or loan its money or credit to aid an individual or corporation. Heither could it become, directly or indirectly, the owner of stock in or bonds of any association or corporation. “Hor shall any .such, county, city,

Can it be a city purpose to acquire property which is to he used by an individual or corporation for profit, over which neither the city nor its citizens can have control, the use of which they cannot regulate, and where they can have no authority to 711-pose the terms upon which it is to be used by others? Can it be a city purpose to invest <$55,000,000 in property which, by a very possible contingency, may be operated or leased so that no return at all .shall be paid to the city for its use, the city or its citizens powerless to obtain possession of or in any way control or use it, and from which, by means of a contract uncontrolled by the municipal corporation, the person in possession can exclude every one of the citizens of the city except upon payment of a fee, the amount of which neither the city nor its citizens can control? We are here dealing with a city purpose, a purpose for which

“It is impossible to define in a general way with entire accuracy what a city purpose is, within the meaning of the constitution. Each ease 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 bene>fits might flow to the city. Such works have 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, to®, 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-

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 tp 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 improvements 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 thq 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 tire road from the city limits to the middle of the city, and, after 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 clear, 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 he for the use of the citizens, as would the railroad to be built under this act, viz., those of the citizen 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.

“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 we permit. While, as was said in one of the oases 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 sudh 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 as an absolute owner, so that it would be entitled to the possession, control, or use of the property 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 Heqnembourg v. City of Dunkirk, 49 Hun, 550 ; 18 St. Rep. 570 , is also relied upon by the learned counsel for the

The case of Walker v. City of Cincinnati, 21 Ohio St. 14 , and the several cases which follow it, are not in point. The constitution of the state of Ohio forbade any city to become a stockholder in any corporation, or to raise money for or loan its credit to or in aid of any corporation. The legislature had empowered any city of the first class to build a railroad from that city to any other terminus in the state, or in any other state. The supreme court of Ohio held that the 'act was not within the constitutional prohibition above quoted, which was clearly correct. It went on further to hold that such an enterprise was a city purpose, which is contrary to the opinion of the court of appeals in the cases above cited. But it held nothing which at .all applies to the case at bar.

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, section 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.55 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 ; 26 St. Rep. 533 ); also the operation and maintenance of a thea

I have laid stress upon the fact that these rapid transit commissioners were appointed by the legislature, and were state officers, 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 containing over 1,000,000 inhabitants. It is not intended to intimate a doubt as to the power of the legislature to» create or appoint its officers who shall act for the city; but, in determining whether -or not a use to which the city’s money is to-be applied is a city purpose, it is certainly important to determine whether or not property which is to be acquired with such money is to become the substantial property of the city in such a sense that the city retains over it the usual control that one has of property that he owns; and when such officers -are appointed to-acquire property on behalf of the city for which the city has to pay, but where all the beneficial use, management, and control of such property are continued indefinitely under the control of such state officers or persons with whom they make contracts, and when the clear and avowed object of the act is to compel the city to pay for the -property which it can never use and never control, but which is to he used for the profits of a private individual or corporation, and which the citizens of .the municipality can use only in connection with all the other citizens of the state or county or the public generally, upon paying such compensation as shall he fixed by agreement between such state -officers -and the individual or corporation who is to have the use o-f the property, it seems to me that the essential elements of a city use or purpose are absent, and that the acquisition of such property is not a city purpose. “The legislature, when legislating in view of this constitutional limitation, must determine, in the first instance, what is a municipal purpose. Its decision is not, however, final When its act is challenged, as in conflict with this constitutional limitation, -the courts must determine whether debt is authorized to be incurred for a purpose not municipal.’5’ . People v. Kelly, supra.

Even before the ¿^option of this constitutional amendment of 1874, tibe power to malee 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 large, 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, heyond which legislative power . cannot legitimately be exercised.” i

Is not the money to be raised here 'directed to "be paid to a pri- ■ vate 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 he applied, is it noit 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 the 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 Ingraham in the conclusion which he has reached, and in the reasons which he has given; hut, in view of the importance of the case, I think it is not improper to state, as shortly as may he, 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 he unmindful of the rules which must govern courts in deciding upon the constitutionality of an act of the legislature. They are laid down by Judge Allen in the case of People v. Albertson, 55 N. Y. 50 , and are so fully stated by Judge Ingraham in his opinion that they need not be recapitulated here.

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 he 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 he 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, hut that it is a general law. Such is its necessary construction, within the rules laid down by the. court of appeals

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 he operated hy the officials of the city for the benefit of the city, hut shall be operated by a corporation for its own profit, upon payment of a rent, which corporation dhall 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 he paid. While this is the necessary effect of the act, yet it is proper to say that no stress will he laid, in this ouinion, upon the fact that the road, when built, shall he operated hy a corporation which dhall have exclusive control of it; hut the discussion will proceed entirely upon the theory that that of itself is immaterial and the quesition argudd will be whether it is a city purpose for a city to con

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 ease 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 authorized 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 them. This act prescribes 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 hoard 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 he completed within the limit of the amount of money which was the act had authorized to he 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 hoard of bridge trastees, so that they would not he permitted to go on with the construction of the bridge when it became apparent that it could not he 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 c-ity purpose. That question was, as stated by Judge ¡Finch in another opinion, ably argued and frankly decided. The building of the bridge was held to he a city purpose, and the ruling was put upon the ground that it “had always been the policy of the state for two towns, separated by a stream of water, to bridge the stream at joint expense, and the construction of such a bridge was a town purpose of each town.” The underlying principle of the decision is that the building of bridges, like the building of highways, is a public purpose, which, within the limits of municipal corporations, has always been devohied upon those corporations, and that they may he required, not only to build highways within ¡ their own limits, hut m'av he reouired to construct such bridges to adjoining towns upon their limits as may he necessary to afford

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 he considered in examining the question whether any givep. 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 he evolved by a process of exclusion and inclusion in judicial construction.” ' He says that it would not he 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 he 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, he says, lands for a park, for the health and comfort of the inhabitants of the city, could be purchased outside of the city limits, and yet conveniently near thereto. Such improvements, he says, are for the common and general benefit of all citizens, and have always been regarded as within the scope of municipal government. He says, too, highways or streets leading into a city or village may he improved, provided the improvements be confined within such limits that they may be re

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 city. The application was opposed upon the ground that the taking of the land for a park outside 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 JudgeEinch, in delivering the opinion of the -court, took occasion toexamin-e somewhat into the meaning of the phrase “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 he taken extended in any degree outside of these boundaries. In. deciding the question, Judge Einoh 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 he primarily for the benefit, use, or convenience of the city, as distinguished from that of the public outside of it, although they may he incidentally benefited, and the work he of such a character as to show plainly a predominance of that purpose; and then the thing to be don-e 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 t-liat 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 he a thing intended to attain the objects for which cities arc 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-before, but simply to lay stress upon the idea that no city is at liberty to incur an indebtedness for any work except such as is

If the power to 'build a railroad is to be regarded as a city purpose, it can only be so if it can he 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 New 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 inhabitants, any more than they were called upon to limit the operation of the street railway act to those cities; hut, if the building of a railway is a city purpose for one city, it must he equally a city purpose for any city within the boundaries of the state. Indeed, if it can be said to he 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

• 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 capitel 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 city of Albany could he compelled to pay their money to do it. So the building of fortifications for the protection of the city of Hew 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 the limits of those cities was a city purpose, for which 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

It is quite true that, in a certain sense, a railroad is a public purpose, for which the right of eminent domain may be exercised, and the franchise of which is a public franchise; but yet it is clear that it cannot be said to be a highway, in the sense in which ordinary highways and streets are said to be such. An ordinary highway gives to the public a right of passage, with the powers and privileges incident to that right, but it gives that right to each one absolutely and completely. It is essential to the notion of a highway that its use must be common to all citizens. 3 Kent, Comm. 432. Kb one can be excluded from that use. It is constructed under the power of the state for that purpose. The object of its building is that every citizen may go backward and forward upon it at his pleasure, on foot or with such means of transportation as he has at hand.

As is said by Judge Peckham in the case of Eels v. Telegraph Co., 143 N. Y. 133 ; 62 St. Rep. 138 :

“The primary or fundamental idea of a highway is that it is n 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 what the business or object of the latter might be.” 143 N. Y. 140 ; 62 St. Rep. 138 .

. 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 fast 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 civil

If I am right in this conclusion,—and I see no escape from it,—the power of the city to build a railroad within its limits cannot he called a “city purpose,” within the authority which it has to lay out and construct highways. I can find no other object

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 Corn §12.

The constitution says that no city shall contract an indebt- ' edness for the purpose of performing such duties. That provi_ sion of the constitution was adopted at a time when municipal

It is quite true that for over 200 years the city of Hew York has owned and controlled the docks along the water front, and the ferries extending to the places on the opposite side of the-rivers which bound it, and that it has leased these ferries and docks to private individuals; but it must recollected that, long before the constitutional prohibition now in question was adopted,, this property was the private property of the city of Hew York, and the provision of the constitution was not intended in any way to affect the management by the city of its private property. But.,, even were that not so, the erection and control of docks and th& management of femes 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 further than can be justified by any fair construction of our constitution, and certainly further than ever has been done-before. This whole legislation is fraught, as I believe, with danger to the commonwealth, because the necessary effect of it cannot he otherwise than to draw within the -power of the legislature^ and to impose upon the state and city authorities, the management and control of every agency which can in any way tend to the convenience of the people, or which can he supposed in. any way to advance their .prosperity. As is said by Judge Andrews in Re Niagara Falls & W. Ry. Co., 108 N. Y. 385 ; 11 St. Rep. 632 , “it would 'be impracticable and contrary to our usage for the state to enter upon the general business of constructing and operating railroads.” It is just as much impracticable- and contrary to our usages for the state to devolve this duty upon the municipal corporations which axe organized for entirely different purposes. This particular scheme commends itself to great numbers of people because of its apparent necessity, but none the less it is a step beyond the ordinary duties of a municipal corporation, which opens up the way to the most serious evils to the community.

For these reasons, and within the rules which have been laid down by the courts, and the necesary inferences to be made from them, Í believe that the purpose to be accomplished by this act-