one locality, apparently, may actually receive their benefits. The classification of cities by population is an idea recently embodied in the constitution, and good reasons exist why, in a general law, reference may be had to conditions of population, whether in counties, cities, towns, or villages, or with respect to a proximity to cities of a certain growth. We shall adhere to the rule, now settled, that an act embracing all things of a certain class is a general, and not a local, act, although, by reason of some limitation, based on population or other condition, only a particular locality can, in the actual situation, receive its benefits (Ferguson v. Ross, supra); but, when restriction is imposed upon restriction, until, as in the present case, its generality is hidden and impossible, the courts should not hesitate to adjudge its invalidity. When such an act as this has been passed by the legislature, the question may well be asked whether the constitutional provision has come to be regarded as a dead letter, and whether its continued violation by the legis lative body may be justified upon such grounds. The question is whether the constitutional provision shall continue to stand as a vigorous expression of the will of the people, or whether the legislature may evade its inhibition, with the approval of the judicial branch of the government. It is my judgment that, when a constitutional question is presented to the court, it should be answered according to the view which takes in the purpose of the adoption of the constitutional provision and the consequences to the people of its disregard. I do not think it to be a safe principle of construction to adopt that the general form of the legislative enactment may save it from condemnation, when a willful and impolitic, or unnecessary, purpose to evade the constitutional mandate is to be seen through the transparent device. That would be too fraught with danger to the efficiency of the constitutional provision. Under this view of the law in question, it becomes unnecessary to consider the other questions raised, and the order appealed from should be affirmed, with costs.

O'BRIEN, J. (dissenting). I think that the legislature had power to enact chapter 286 of the Laws of 1897, and that is the only question in this case. The act is entitled "An act to provide for the widening and improving the highways in towns having a total population of eight thousand or more inhabitants and containing an incorporated village having a total population of not less than eight thousand and not more than fifteen thousand inhabitants." The learned court below has held that this act is in conflict with the constitution, and therefore void. It is clearly an act providing for the widening and improving of highways in certain towns.

The legislature is inhibited from passing any private or local bill for this purpose. Const.

art. 3, § 18. But this is not a private or local bill, since by its terms it applies to every part of the state where the conditions exist necessary to put it in operation, or where they may exist at any time in the future. It is just such a law as the very same section of the constitution permits the legislature to enact. After enumerating various subjects upon which the legislature is forbidden to legislate by a private or local bill, the constitution provides that "the legislature shall pass general laws providing for the cases enumerated in this section, and for all other cases which in its judgment may be provided for by general laws." Thus, it is plain that the constitution permits the legislature to enact general laws on every subject which, by the terms of the section, it is forbidden to legislate upon by means of a private or local bill. The constitution says that certain things shall not be done by a private or local bill, but that all these things may be done, providing the law is general in form. But it goes much further, since it provides that the legislature may pass a general law for all cases which in its judgment may be provided for by that form of legislation. Now, the case at bar is one which the legislature in its judgment provided for by the passage of a general law, and the whole argument against the validity of this statute is either that the legislature was wrong in the exercise of its judgment, or that, when it passed in form a general law, it did not mean what it said, but was all the time seeking to violate the constitution by the enactment of a private or local bill, and thus it has succeeded in its purpose.

The difficulty with this argument is that it completely reverses the presumption that always prevails to sustain a statute until the courts are compelled by force of reason or authority to condemn it as in conflict with the fundamental law. Moreover, it introduces a new method for testing the constitutional validity of statutes, in that it asserts that the courts may institute an inquiry into the conduct and motives of the legislature in the enactment of a law, and, if satisfied from the facts that the legislature intended to provide for a particular case in a particular locality, that the law passed for that purpose is not a general law, as it professes to be, but a private or local law, and therefore void under the restrictions of the constitution.

This doctrine has led the court below in this case to try an issue with respect to the intention and motives of the legislature in the enactment of the statute, and having be come satisfied from all the facts that there was but one place in the state, or, at most, but a few places, where the conditions existed for the operation of the law, it was not, therefore, a general law as the legislature said it was, but a local law, and for that reason void. The argument against the validity of the statute may be made plainer by reference to the concrete case now before us.

It is the case of five persons who state that they are residents and freeholders of the town of New Rochelle, and they ask the court to appoint commissioners for the purpose of improving a road under the statute. Their petition sets forth precisely the conditions necessary in order to set the statute in motion. The state of things disclosed by the petition so exactly fits all the conditions of the statute that the learned appellate division was induced to institute an inquiry as to the facts upon which the legislature acted, and, not being able to find any other place in the state where the same conditions existed, it concluded that the statute must have been passed to meet a case in New Rochelle, and hence in violation of the constitution.

If

If an act of the legislature can be overthrown in consequence of the existence or nonexistence of certain extraneous facts or conditions, the procedure established by law for an inquiry as to all matters of fact should be observed. It is not the province of an appellate court, at least in the first instance, to decide what the facts are in any case. it was competent or material to find how many places there are in the state in which the conditions exist to put the statute in operation in order to determine whether it was a general or local law, then that issue should have been tried in the regular way in the court of original jurisdiction, where the whole matter was open to proof, if the court had anything at all to do with the question.

But the learned court below determined on its own knowledge, not only that New Rochelle was the only place where the law could be applied, but that it was the only place where the conditions ever would exist. In order to pronounce the law invalid, the court must not only consider the present state of things but the future as well.

There is really no authority in any system of jurisprudence for assailing legislative acts upon such grounds. If the courts can go behind the legislative declaration on the face of a bill that it is a general law, and institute an inquiry as to the purpose and motives of the legislature, for the purpose of declaring it to be a local law, such a principle is destructive of that system of checks and balances by which the constitution has assigned to each department of the government its proper powers and functions. The courts have no right to say that a law which the legislature has declared to be a general law is, nevertheless, only a local law, because they can find only one place, or but a few places, in the state where it can be applied. It is not within the province of the judiciary to impute to the legislature a motive or purpose contrary to that expressed on the face of the bill, and so, when it declares a law to be general, it is not competent for the courts to say, upon an inquiry with respect to extraneous facts, that it was intended to be local. Any encroachment by one department of the government upon the rights and 50 N.E.-5

powers of another is simply usurpation. This court has often before been invited to usurp the inquisitorial office of judging of the motives of the legislature, and inquiring into the bona fides of that body in discharging its duties, but has always declined. In a wellknown case, where there was much more reason for embarking upon such an inquiry than there is in the case at bar, Judge Denio answered the argument in these words, which seem to me to be a correct statement of the duty of the judiciary when called upon to review the acts of another department of the government: "If a particular act of legislation does not conflict with any of the limitations or restraints which have been referred to, it is not in the power of the courts to arrest its execution, however unwise its provisions may be, or whatever the motives may have been which led to its enactment. There is room for much bad legislation and misgovernment within the pale of the constitution; but, whenever this happens, the remedy which the constitution provides, by the opportunity for frequent renewals of the legislative bodies, is far more efficacious than any which can be afforded by the judiciary. The courts cannot impute to the legislature any other than public motives for their aets. 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." People v. Draper, 15 N. Y. 545.

The statute in this case is challenged on the sole ground that the legislature intended to and did pass a local law for improving a particular highway in the guise of a general law. That is a matter that the court has nothing whatever to do with, and if it were all true in fact it would not invalidate the law, since the constitution expressly authorizes the legislature to do anything that cannot be done through a local bill by another form of legislation, namely, a general law. It is common experience that many general laws originate in some local necessity or in some local evil. They may have been intended to meet some particular case or supply some local want, but they are not local laws, for the very plain reason that the legislature has given to them the form of general laws, and the courts have no right to go behind the decision of the legislature. That body had the power to determine, when enacting this statute, whether a general law was necessary, and so it enacted such a law complying with the forms of the constitution. It is not within the power of the judiciary to say that the legislature meant one thing and said another, or that there was no necessity for the legislation. That would be a direct attack by one department of the government upon the powers and functions

of another, and a usurpation of authority subversive of the principles of the constitution. The decisions of this court are all in the same direction, and clearly sustain the statute now in question. In Manufacturing Co. v. Shanahan, 128 N. Y. 345, 28 N. E. 358, the question was whether a statute which on its face appeared to be public was not really passed to promote a private purpose. In that case the trial court did what has not been done in this, namely, tried the question and made findings that the act was private and passed for private purposes, and therefore unconstitutional and void. But this court reversed the judgment for the reasons herein before stated.

The constitution forbids the legislature from passing a private or local bill authorizing the laying down of railroad tracks. Chapter 225 of the Laws of 1893 enacts that any bridge company over a river connecting any city in the state containing more than 1,000,000 inhabitants with any other city in the state may lay tracks and operate a railway upon its bridge. Now, there never was the least doubt that the law was intended for but one place in the state, and that was a bridge across the East river from New York, and yet this court held it to be valid as a general law. Bridge Co. v. Smith, 148 N. Y. 540, 42 N. E. 1088. The legislature can pass no private or local bill increasing or decreasing the allowances or compensation of public officers during their time of office. But chapter 710 of the Laws of 1892 authorizes that to be done in the fire department of all cities having a population exceeding 900,000. Of course every one knows that there were but two cities in the state to which this act could be applied, or that it was intended for, but this court held it to be a valid general law. In re Dobson, 146 N. Y. 357, 40 N. E. 988. It is impossible to make any distinction between the case now under consideration and numerous others in this court where such statutes have been held valid. In re Petition of New York El. R. Co., 70 N. Y. 328, is one of them, and In re Church, 92 N. Y. 1, is another. Indeed, the latter case was identified and admitted to be a law for a single county, since the conditions existed in no other county. Judge Finch, in answer to arguments precisely such as are now made in this case, stated the principles upon which such laws are regarded and treated as general, and not local: "A law relating to particular persons or things as a class was said to be general, while one relating to particular persons or things of a class was deemed local and private. The act of 1881 relates to a class, and applies to it as such, and not to the selected or particular elements of which it is composed. The class consists of every county in the state, having within its boundaries a city of one hundred thousand inhabitants, and territory beyond the city limits mapped into streets and avenues. How many such

counties there are now, or may be in the future, we do not know, and it is not material that we should. Whether many or few, the law operates upon them all alike, and reaches them, not by a separate selection of one or more, but through the general class of which they are invidual elements. The force of the law of 1881 is not localized in Kings county and confined to its territory. By its terms it applies equally to every other county which may prove to be within the constituted class. It is said there is but one such county, and so it was said there was but one elevated railroad. Neither fact at all narrowed the terms of the law. Those terms in each case were broad enough to cover every county in the state if it had the required city and the mapped territory on the one hand or its own elevated road on the other. The case cited adds example to definition, and, following its doctrine, we must hold the law of 1881 to be general and not local, and so not a violation of the constitution."

We have recently upheld the validity of a statute which authorizes the expenditure of at least $55,000,000 to build a railroad in the city of New York. Sun Printing & Publishing Ass'n v. City of New York, 152 N. Y. 257, 46 N. E. 499. That statute is in the form of a general law, just as this is, but no one ever even attempted to disguise the fact that it was enacted for that city alone. It provided for the building of railroads in cities containing over 1,000,000 inhabitants, and in that disguise it appeared as a general law. That statute conferred power on a great municipality to build a railroad. This statute, even if all that is said with respect to its local character be correct, conferred power on a small municipality to improve common roads. If the former law is valid, certainly the latter is. There were many weighty reasons for disapproving that law that do not exist in this case, and, if the courts were disposed to indulge in the reasoning now invoked against the statute in question, we could not have sustained it. It would be tedious to enumerate all the cases in this court in which just such legislation has been upheld. Having sanctioned so many gigantic local projects that took the form of general laws, though clearly local in all their objects and purposes, it would seem to be inconsistent, if not unwise, to change the law now in order to defeat a statute that has no other purpose than the improvement of certain country roads. Whether it is a good law or a bad one, it cannot produce such public mischief as a decision which practically upsets all rules that have heretofore prevailed concerning the power of the legislature to accomplish by a general law what it is forbidden to accomplish by a local law. The evils of such legislation, if they exist, can be remedied in some other way than through an encroachment by the courts upon the province of the legislature.

It is idle to attempt to make any distinction between these cases and the case at bar. It is suggested that the legislature may pass a private or local bill, in the form of a general law, provided it be presented in that guise, by means of a classification based upon population alone. But in all the cases referred to there were other conditions besides population. It is said that in this case the operation of the statute is hedged in by seven conditions that exist only in one place. There were just as many in the Church Case, if not more, as will be seen, if it is thought important to count them. But why a statute surrounded by seven uncertain conditions that may or may not exist in various parts of the state is bad, while another statute, depending upon one certain condition that cannot possibly exist in but one locality, like a city containing not less than a million inhabitants, is good, it is impossible to understand. If there is any distinction between the two cases it is in favor of the former and against the latter.

Where a general law is operative only in a city containing not less than a million people, it is localized beyond any possibility of mistake. Not so with the statute now before us. Whether it applies to a few places or to many places depends entirely on the accuracy of the investigation into the facts made by a court on appeal, without any evidence in the record as to these facts, but upon its own knowledge, which may or may not be correct. So that any attempt to make a rational or sound distinction between this case and those referred to must utterly fail. If there is any public necessity for invalidating a statute providing for the improvement of certain country roads, which I cannot perceive, there is only one way to do it, and that is to say that all our previous decisions with respect to this class of legislation were wrong, and should be overruled. It is simply impossible to give any satisfactory reason for holding a local act, disguised in the form of a general law based upon population, valid under the constitution, and another local law, disguised in some other form, or by some other conditions, invalid. It is trifling with the constitution to say that whether a law is general or local depends upon the form of the disguise; and to hold that, if the disguise is so open and notorious that it can deceive no one, and is readily detected, as in those cases where the act applies to cities of not less than a million inhabitants, it is a good law, while if the conditions take a broader range, so as to make it applicable more generally, as in this case, it is a bad law, is a process of reasoning that, to say the least, is not very satisfactory or persuasive.

It is obvious that all legislation of this character must rest upon some basis more substantial than mere verbal distinctions founded upon conditions of population and other conditions. This case illustrates the princi

ple. It is one of the functions of all civilized governments to build or improve highways generally or locally. The legislature of this state possesses that power in the broadest sense. It has the same power to improve one highway in a town that it has to improve a highway from one boundary of the state to the other. The only limitation upon this power is with respect to the mode of procedure. The constitution says that it shall not proceed to build or improve either by a private or local bill, but that it may accomplish both purposes by means of a law general in its terms. The decision in this case is virtually that the legislature cannot improve the road in question by any form of legislation whatever. If it passes a bill for that purpose which is private or local on its face, it is clearly unconstitutional. passes a general law, as it has in this case, the courts will say to the legislature that they have examined all the facts, and have concluded that, while the law is general on its face, yet it was not in good faith intended to operate generally, either now or in the future, and that they have become satisfied that in spite of the legislative declaration it is a private or local law in disguise, and therefore void. Thus, the legislature is unable to move in one direction or the other, if the courts for any reason are against the law. The plain meaning of the constitution is that the legislature shall be the sole judge of the necessity of every law, and when it passes a law general in form, though at the time applicable only in a limited locality, it is not open to question in the courts.

If it

The arguments against the decision in this case might be multiplied, but I have been content to outline them. It is enough to say, generally, that it is founded on a dangerous and vicious principle. It is nothing less than an assertion by the judiciary of the power to review the work of the legislature upon an inquiry as to extraneous facts, and to set aside a statute, if satisfied that it was not enacted in good faith or that the professed motives for its passage were not the real ones, or that the real purpose was private, while that stated is public. Such a principle is subversive of every independent power conferred upon the lawmaking body by the constitution. We have no more power to annul a statute upon such considerations than we have to inquire whether it is not the product of corruption in the legislature or in the executive department.

The scheme of representative government under a written constitution dividing all power among three departments has been in operIation on this continent for more than a century. It is the one great feature in the federal constitution that was new and that has commanded the admiration of the world. It is the distinctive feature in every state constitution, and in none of them has this division and distribution of power been more carefully observed than in our own. Under

this system we have had all kinds of laws enacted by congress and by state legislatures, and the courts have freely exercised the power of subjecting them all to the test of the constitution. But it is safe to say that never before in any court of last resort has a statute been set aside as void upon an inquiry of fact with respect to the existence of the conditions necessary to give it operation, or on the ground that the judgment of the lawmaking body was improperly or unwisely exercised, or that the professed motives for its enactment were not the real ones.

It is too plain for concealment that these are the grounds upon which the statute in question has been set aside. Whether the conditions which are necessary to put this law in operation exist only in one county, or in twenty counties, is a fact that does not appear on the face of the statute. It is ascertained only through an independent extraneous inquiry conducted by the court on appeal, and, even after it is concluded, no one professes to know or ventures to assert anything with respect to the localities where the conditions existed,-whether few or many at the date of the enactment of the law,-and much less as to the places where the conditions may exist 10 years hence. It cannot be denied that the law on its face includes every county but one, and is operative in every locality where the conditions exist or may exist in the future, and that the only objection ever made to it was that, as matter of fact, these conditions do not exist in a sufficient number of places to give the statute the character of a general law, and therefore it must be a local law, the declaration of the legislature to the contrary notwithstanding. If the courts may do that in this case, they may do it in every case, and hence I repeat what has been already stated, that such a principle subjects the action of the legislature, in all cases, to the control of another department of the government. The order appealed from should be reversed.

PARKER, C. J., and HAIGHT and VANN, JJ., concur with GRAY, J., for affirmance. BARTLETT and MARTIN, JJ., concur with O'BRIEN, J., for reversal.

Order affirmed.

WALKER et al. v. WALKER et al. (Supreme Court of Indiana. April 21, 1898.) APPEAL-SUFFICIENCY OF ANSWER-DIVORCE-EFFECT AS TO PROPERTY RIGHTS-CAPACI TY OF PARTIES TO MARRY.

1. An answer directed to an entire complaint must, in order to withstand a demurrer, be good as to all the causes of action stated in the complaint.

2. A decree of divorce adjudicates all property rights or questions growing out of or connected with the marriage.

3. A decree of divorce affirms the capacity of the parties to enter into the marriage contract.

4. Property conveyed by a husband to his wife, the conveyance to be void if she abandons or refuses to take care of him, cannot be recovered because of a breach of such conditions after a decree of divorce has been granted.

Appeal from circuit court, Hancock county; Charles G. Offutt, Judge.

Action by Thomas Walker, as guardian of William C. Walker, a person of unsound mind, against Gussie M. Walker and others, to quiet title to real estate. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

Richard A. Black and Saml. A. Wray, for appellant. E. W. Felt and Marsh & Cook, for appellees.

JORDAN, J.

Thomas Walker, as guardian of William C. Walker, a person of unsound mind, filed his complaint in three paragraphs; and on the 15th day of December, 1896, instituted this action against Gussie M. Walker, William C. Dudding, and William H. Moore, the appellees in this appeal, whereby he sought to set aside a certain antenuptial contract, together with certain deeds executed by his said ward prior to his being adjudged a person of unsound mind, and to quiet the title to the real estate described in the complaint. Copies of the deeds involved in the action are filed as exhibits. The material facts disclosed by the first paragraph of the complaint, and the exhibits filed therewith, may be summarized as follows: Some time in 1896 (the exact date is not stated) William C. Walker, the ward, was adjudged by the court to be a person of unsound mind, and plaintiff was appointed his guardian. On and prior to May 28, 1894, said Walker was the owner in fee simple of the lands mentioned in the complaint. Prior to March 16, 1894, Walker's wife died, and, after living as a widower for some time, he became desirous of again marrying, and formed the acquaintance of Gussie M. Wachestetter, who was his junior by many years, and whose character, as is averred, at that time was bad. Soon after becoming acquainted with this woman, William C. Walker, who was then an old man, as is alleged, feeble in body and mind, invited her to come to his home and reside, which she did, and there lived as a member of his family for about a month, during which time he proposed to her that she marry him, which proposition she accepted; and accordingly, on the said 16th day of March, 1894, they were married at Hancock county, Ind., and became husband and wife. During the time said Gussie M. resided in the family of William C. Walker, prior to his marriage to her, it is charged that he was under her influence and control, and by means thereof she wrongfully caused and induced him to execute an antenuptial contract, whereby he agreed and promised to convey to her 80 acres of his land, being a part of the real estate in suit; and it is alleged that, in consideration thereof, she