conferring any right to interfere with private property, except it be needed for public objects. To take land for any other than a public use; to take it from one citizen and to transfer it to another, even for full compensation,-would be to violate the contract by which the land was originally granted by government. Beekman v. Railroad Co., 3 Paige, 44, 73; Bloodgood v. Railroad Co., 18 Wend. 9. The fourteenth amendment of the federal constitution, in prohibiting a state from depriving any person of life, liberty, or property without due process of law, protects the citizen against the taking of his property for any other than a public use, either under the guise of taxation, or by the assumption of the right of eminent domain. Fallbrook

Irr. Dist. v. Bradley, 164 U. S. 158, 17 Sup. Ct. 56, 41 L. Ed. 369. It is a security against the arbitrary spoliation of property, or any abridgment of the immunities of citizens of the United States. The state constitution, from the beginning, by authorizing the appropriation of private property for public use, impliedly declared that for any other use private property should not be taken from one, and applied to the private use of another. In re Albany St., 11 Wend. 149. It was observed by Judge Denio in People v. Smith, 21 N. Y., at page 598, that it would not be due process of law to "appropriate the property of one citizen for the use of another, or to confiscate the property of one person or a class of persons, or a particular description of property, upon some view of public policy, where it could not be said to be taken for a public use." Whether that is a public use, for which private property is authorized to be taken, will depend upon the object aimed at, and whether the plan has such an obvious or recognized character of public utility as to justify the exercise of the right of eminent domain or of the power of taxation in its favor. I suppose, in that consideration, when some new constitutional provision is in question, regard should be had to prior conditions in the laws and in the decisions of the courts of the state upon the subject, which illustrate some settled policy of the community. That can be understood by reference to the cases which arose under the mill acts in the New England states, the irrigation acts in the Western states, and the drainage statute of New Jersey. Head v. Manufacturing Co., 113 U. S. 9, 5 Sup. Ct. 441, 9 L. Ed. 28, 889; Wurts v. Hoagland, 114 U. S. 606, 5 Sup. Ct. 1086, 29 L. Ed. 229; Fallbrook Irr. Dist. v. Bradley, 164 U. S. 112, 17 Sup. Ct. 56, 41 L. Ed. 369. The statutes in those cases were justified, either in view of a policy in force prior to the adoption of the state constitutions, or, within a similar principle, by long exercise of a legislative power which the state courts had sustained. In Wurts v. Hoagland, the New Jersey drainage statute discussed was framed in the public interest. It authorized the board of managers of the geological survey, "upon the ap57 N.E.-20

plication of at least five owners of separate lots of land," etc., to examine the tract, and, if they deemed it for the interest of the public and the landowners affected thereby, to adopt a system of drainage, and to report it to the supreme court of the state, etc. It was observed in the opinion that several drainage laws, and the assessment of the expense of the work upon all the lands in the tract in question, "have long existed in the state of New Jersey, and have been sustained and sanctioned by the courts under the constitution of 1776, as well as under that of 1844"; and the case was held to come "within the principle upon which this court upheld the validity of general mill acts in Head v. Manufacturing Co., 113 U. S. 9, 5 Sup. Ct. 441, 9 L. Ed. 28, 889." In Fallbrook Irr. Dist. v. Bradley, the California irrigation act was upheld, in view of the various enactments, constitutional and legislative, together with the decisions of the state court that such a use of water was a public one. It was observed that they were not binding upon the court; but in their light, and under the facts and circumstances surrounding the subject-matter, in regard to which the use was questioned, there could be little difficulty in arriving at the same conclusion as the California court. The provision for the opening of private roads in the consututional section under consideration represented a public policy dating from 1772, when the first statute upon the subject was enacted. This statute continued in full and active operation as a law of the state upon the adoption of our constitution in 1777, which continued such parts of the common law in force as had formed the law of the colony. It was embodied in the Revised Statutes (1 Rev. St. 513, §§ 54, 77, 79), and then, in 1846, was added to the constitution. It was an evident public policy of the state, long acquiesced in, that facilities should be furnished for private ways, so that the property of citizens might be made accessible. Satterly v. Winne, 101 N. Y. 218, 225, 4 N. E. 185. Judge Cooley, in his work on Constitutional Limitations (page *532), observed that the common law has never sanctioned an appropriation of property upon such considerations as the improvement and cultivation of the wild lands of the state, the drainage of low lands, etc., and that some further element must be involved before the appropriation can be regarded as sanctioned by our constitutions. He further remarked that "the reason of the case and the settled practice of free governments must be our guides in determining what is or is not to be regarded as a public use."

In this state, prior to the adoption of this constitutional amendment, a general drainage law appeared in the Revised Statutes (2 Rev. St. p. 548); but it was very early declared by this court to be unconstitutional, as authoriz ing the taking of the property of the owner of the land, and transferring it to the appli

cant for the ditch, against the consent of the owner. Gilbert v. Foote, not reported, but cited in White v. White, 5 Barb., at page 483, in 1849, and referred to in Re Ryers, 72 N. Y. 1. It was said of Gilbert v. Foote by Judge Folger, in Ryers' Case, that "it is understood that the judgment of this court went mainly upon the ground that the act sought to permit the taking of private property for a private use, which was not a use for a private way." In 1869 a general act for the drainage of swamps and the like was passed (chapter 888, Laws 1869), the constitutionality of which was challenged in Ryers' Case. It contained a provision that the commissioners appointed by the court upon the application of the petitioners should determine, not only the question of the necessity of the ditch for drainage purposes, but "whether it is necessary for the public health," and other provisions restricted the purpose of the proceeding to that of the benefit of the public health. Such provisions were doubtless inserted in amendment of the prior general drainage statute, and to obviate the objection to its constitutionality. In re Draining Swamp Lands, 5 Hun, 116. The opinion of this court in Ryers' Case proceeded upon the proposition of the right to take private property for public use, making due compensation therefor, and that the maintenance and promotion of the public health were matters of public concern. It was held to be a constitutional power of legislation to provide for removing or abating that which has become a public nuisance, injuring the public health. "We are not called upon in this case," Judge Folger observed, "to uphold an act which has for its purpose the benefit of individuals. As before said, it avows, and avows only, a public purpose. * We wish to be distinctly understood that we sustain this act as constitutional solely for that it plainly has for its purpose the preservation and promotion of the public health." A reading of the act of 1869 makes it perfectly apparent that, within its scope, the object of drainage proceedings was confined to cases where they were demanded in the interest of the public health. It must be conceded, therefore, that up to 1894 such a drainage proceeding as would be authorized under this amendment to our constitution, being for a private purpose, was neither sanctioned by the laws, nor upheld by the courts. The policy of the state, thus evidenced, was manifestly founded on the sanctity of private property rights under the social compact, and was adverse to any legislation which would violate it. It was well within the legislative power to make the state the sole actor, and in the interest of a public necessity or convenience to authorize such interference by the public authorities with private rights as would abate conditions prejudicial to the health or confort of the community, or to authorize private persons to take the initiative in the same direction of public utility. In the drainage statute in question in the Nearing Case, 27 N. Y. 306, for

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instance, the legislature appointed the commissioners to drain the wet and swamp lands of the town of Cicero, and directed their procedure. The state was the actor in the matter, and thus the presumption of a public purpose or necessity was conclusively furnished. The legislative action was similar in the acts referred to in Hartwell v. Armstrong, 19 Barb. 166, and in People v. Jefferson Co. Ct., 55 N. Y. 604. But, lacking public ends, I find nothing in the past political history of the state which would justify laws by which a citizen may be authorized to take the property of his neighbor, by the exercise of the right of eminent domain, for a purpose which is primarily for his private benefit, although incidentally of such possible benefit generally as any improvement of agricultural lands would result in. Such legislation is not sound in principle, and we are not embarrassed by any long acquiescence, or by either judicial or legislative precedents, in so asserting, or in holding that no imperative reasons of public policy warrant the delegation of the power to exercise the right of eminent domain in such cases.

When the constitution of this state was amended in this way by the people in 1894. it was intended, undoubtedly, by embodying in the organic law an authorization for the passage of general laws permitting owners of agricultural lands to construct and maintain ditches for the drainage of their properties, to conclusively sanction such legislation thereafter. The probable intent of any law may often be stated from a consideration of the political conditions which existed, the presence of which migut be deemed, not unnaturally, to operate upon the lawmakers. An amendment of the organic law of the state represents the expression of the dominant popular sentiment upon the subject, and in this instance it undoubtedly represents a purpose to make that lawful which before was not. The reasoning would be that if it was unconstitutional, and therefore unlawful, before, to authorize the taking of private property for the private purpose of the drainage of agricultura! lands, by giving it constitutional warrant it would become lawful to do so, if, indeed, the plan might not be perforce invested with a public interest. But this result would and should not be attained if the constitutional amendment was in conflict with those provisions of the supreme law of the land, embodied in the federal constitution, which guaranty the citizen against the taking of his life, liberty, or property without due process of law. The amendment of our constitution does not, in terms, declare its object to be a public one. Indeed, I think that its language, by a fair reading, rather negatives such an inference, and imports that the object is the private benefit of the landowner; for the purpose is stated to be the drainage, only, of his lands, and he is to make just compensation for the land appropriated to that purpose. I conceive the proper rule of construction to be

that, if the amendment expressed a purpose theretofore recognized as public, it would afford that sufficient sanction for subsequent legislation on the subject which might be needed. But if the object had been theretofore deemed not of a public nature or of public concern, and it touches some personal immunity secured by the law of the land, its presence in the constitution will not have the effect of removing the fundamental objection to it. I do not believe that the people of the state can affect or impair the obligation of the social compact by adopting as a part of the organic law a provision which will permit of the taking of private property for a purpose which is essentially of private benefit, and which has always been held to be such. When the amendment says that "general laws may be passed permitting the owners and occupants of agricultural lands to construct and maintain for the drainage thereof necessary drains," etc., it means that the legislature may authorize any such person to take another's land for a purely private purpose; and that is in conflict with the inhibition of the bill of rights, and violates the guaranties of the federal constitution. If the citizen invokes the guaranties of the federal constitution for his protection against the enforcement of a law which an amendment of the state constitution purports to authorize, I perceive no valid reason, if he is right in his claim to protection, that we should not recognize it. I am not able to resist the conclusion that the constitutional amendment in question is invalid and inoperative.

If, however, the amendment in question can be upheld as valid, upon the assumption that it removes a constitutional limitation upon legislation providing for the drainage of agricultural lands, and that it can rest for its justification upon a common local necessity, independent of the public health, and concerning the promotion of the prosperity of the community, then it seems clear to me that it affords no warrant for the enactment of this drainage law. The section of the article of the constitution to which the amendment was added prescribed the tribunal which shall ascertain the compensation to be made for the private property "taken for any public use," and then proceeded to provide for the opening of private roads, and that the payment of the amount of the damage to be sustained by their opening and the expense of the proceeding "shall be paid by the person to be benefited." In this extension of the law of eminent domain to such a case in the constitution of 1846 there was to be no assessment of damages and expenses upon the nonassenting owners of the lands taken for the private road; and the act passed in 1853 by the legislature, regulating the procedure, strictly followed the constitutional requirement in that respect. Laws 1853, c. 174, 14. When the amendment under consideration was added in 1894, by the force

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of its own language, as by necessary implication from its association with the other provisions of the section, the plain intent was that the landowner seeking to construct a drain through other lands, in invitum their owners, should make compensation for the land appropriated, and himself bear the expense. The only general laws authorized were those "permitting the owners and occupants of agricultural lands to construct for the drainage thereof necessary drains," etc., "upon the lands of others, under proper restrictions and with just compensation." This language is not susceptible, by any fair reading, of a construction which warrants the assessment upon the landowner proceeded against of a proportionate share of the damages and expenses. The constitution, as an instrument framed by the people for the regulation of the government, should be read with the usual significance given to words and phrases by persons of ordinary intelligence; and nothing should be implied which would add to the individual burden, or which would be in further derogation of individual rights. That which the words declare is the meaning of the instrument, and neither courts nor legislators have the right to add to or take from that meaning. Newell v. People, 7 N. Y. 9, 97. If the amendment is so read, it only authorizes laws which will enable an agricultural landowner, desirous of draining his lands, to exercise the right of eminent domain, and thereunder to appropriate another's lands for the purpose, under such restrictions as shall be deemed proper to be made, and upon his making due compensation. No right is conferred or implied to assess a portion of the cost and expense upon the other landowners. Nor could it authorize such an assessment, without violating the federal constitution; for that would be to authorize the levying of a tax for a private purpose.

In the enactment of the drainage law of 1895, the legislature went far beyond the terms of the constitutional warrant; for the act provided, in addition to the exercise of the right of eminent domain, that a petitioner might compel the cost of the proceeding and of the work to be apportioned between all landowners deemed benefited by the commissioners. The scope and intendment of the law are that the expense of constructing the drain and the damage for the appropriation of property shall be borne by the petitioners jointly with the owners of the land taken, in proportion to benefits accrued. As we have pointed out, the amendment does not authorize this, and the legislature has only that general power with respect to taxation as would justify its exercise for public purposes. Private property may be constitutionally taken for public use by taxation, as it may by right of eminent domain, and the compensation which must be specially made in the latter case, when property is taken, is deemed to be received, when property is taken under the power of taxation, in the protection

afforded by government to the life, liberty. and property of persons, or in the increase of the value of their possessions by the appliIcation of their moneys to the public purpose. People v. Mayor, etc., of City of Brooklyn, 4 N. Y. 419. In taxation, or in taking private property for public uses, the individual is presumed to receive, or in fact does receive, some equivalent for his contribution. The legislature is doubtless the final judge as to what the public necessity and the general good require to be done, as to the extent of taxation therefor, and as to its apportionment, and it constitutes no objection to the exercise of the power of taxation that the burden thereof should be laid upon the territorial district which is exclusively affected by the legislative scheme. Darlington v. Mayor, etc., 31 N. Y. 163. That taxation can be authorized for a purpose not public is a contradiction in terms, and it would be an illegal assumption of power. Property is taken by assessment, which is a form of taxation, as much as if it were taken by right of eminent domain, and the warrant for it must be found in some public purpose. "The right of eminent domain or inherent sovereign power gives the legislature control of private property for public uses, and only for such uses." Per Grover, J., in Brevoort v. Grace, 53 N. Y. 245. The plan of the act of 1895 to permit the assessment of the owners of the lands taken for the construction of a drain was, in my opinion, plainly void, under the state and the federal constitutions, as involving the power to levy a tax for the private purpose of a landowner. If the legislature can enforce the construction of a drain at the instance of one person at the joint cost of himself and of the objecting landowners, the salutary checks imposed upon legislative power for the protection of the citizen become valueless. I quite agree, also, with the views expressed at the appellate division with respect to the power of taxation conferred by the act. To quote from the language of the opinion: "Under its provisions the authority to tax may be exercised in favor of a single person for the improvement of a single acre of agricultural land,-a result which we feel certain was not within the contemplation of the framers of the constitutional provision." As this act confers the right to take property in derogation of private rights, it is to be strictly construed. People v. Jefferson Co. Ct., 56 Barb. 136. It has but one object, and that is to enforce the construction of the work needed to drain or to protect agricultural lands at the joint cost of the petitioner or petitioners and of the owners of the lands taken for the purpose. All of its provisions are connected as parts of a single scheme, which, in any view, must fail for the reasons given.

Nor was there any waiver on the part of the respondents of their right to object. They opposed the application of the commissioners to the county court for the order di

recting the entry of judgments against them for the amount of the assessment attempted to be levied upon them. It does not appear that they had consented to any procedure, or that they had estopped themselves by their conduct from opposing the attempt to assess them for the cost and expense of the work.

Upon either of the grounds that I have discussed, the conclusion must be reached that the order and judgment appealed from should be affirmed, with costs.

PARKER, C. J. (concurring). While I agree with Judge GRAY that the statute under consideration is violative of the state constitution, and therefore concur with him in the result, I am at the same time confident that it was the design of the recent amendment to section 7 of article 1 of the constitution to authorize legislation providing a workable scheme by which to secure the drainage of. tracts of land, whether large or small, in order to provide for their proper utilization, thus establishing it to be a part of the fundamental law of the state that such drainage constitutes a public use, and that such section is not in conflict with the federal constitution.

GRAY, J., reads for affirmance of order and judgment, with costs. PARKER, C. J., and HAIGHT, J., concur in memorandum; O'BRIEN, LANDON, and WERNER, JJ., concur on second ground stated in opinion.

Order and judgment affirmed.

(163 N. Y. 164) FIRST NAT. BANK OF AMSTERDAM v. MILLER et al.

(Court of Appeals of New York. May 15,

FRAUDULENT

1900.)

CONVEYANCE-CONSIDERATION -INTENT TO HINDER OR DELAY CRED

ITORS-EVIDENCE-APPEAL.

1. Evidence that, about a month before the maturity of a note owing to plaintiff, the maker, who was insolvent, conveyed all of his property to his daughter, consisting of real estate exceeding $45,000 in value, and personal property valued at $700, as to which there was no change of possession, in consideration of an alleged past indebtedness due the daughter of about $38,000, of which amount over $1,000 was not a valid obligation of the father, is sufficient to support a finding that the transfers were made with intent to hinder, delay, or defraud creditors.

2. A part of the consideration for the conveyance to a daughter was a sum of money held by the father in trust for the grantee and her sister. which had been used in the improvement of the real estate conveyed, but the record did not disclose what disposition of this interest of the daughter had been made by the trial court, in an action to set aside the conveyance as fraudulent as to the father's creditors, nor present any objections or exceptions to the rulings of the court in relation to such matter. that the court must affirm the judgment, without prejudice to the daughters to bring an ac tion to impress a lien on the real estate conveyed for the amount of the trust fund.

Held,

3. A judgment setting aside a conveyance of

real estate as fraudulent, as against creditors, does not affect the lien of a mortgage previously made by the grantor to the same grantee and another.

Appeal from supreme court, appellate division, Third department.

Action by the First National Bank of Amsterdam against John C. Miller and another to set aside a conveyance of property as fraudulent as against creditors. From a judgment of the appellate division (49 N. Y. Supp. 981) reversing a judgment in favor of plaintiff, and granting defendants a new trial, plaintiff appeals. Reversed.

J. Newton Fiero, for appellant. H. V. Borst, for respondents.

PER CURIAM. This is a judgment creditor's action brought to set aside a conveyance from the defendant John C. Miller to his daughter Esther Miller of certain real estate, and also a bill of sale of certain personal property made between the same parties. The learned appellate division might have reversed the judgment on questions of fact, but no provision of that character is contained in its order. Therefore, under section 1338 of the Code of Civil Procedure, it must be presumed that the judgment was reversed solely on error of law. The case ehows no exceptions taken to the ruling of the court on the admission or exclusion of evidence. The trial court found, as matters of fact, that the real estate conveyed exceeded $45,000 in value; that the personal property transferred was of the value of $700; and that the conveyance and bill of sale were made by the defendant John C. Miller, and received by the defendant Esther Miller, with intent to hinder, delay, and defraud the creditors of the former, who was insolvent at the time. These findings support the conclusions of law, and justify the judgment rendered. The only question before us, therefore, on this appeal is the single question of law whether there was any material finding of fact without evidence to support it. If there was such evidence, we cannot disturb those findings. Parker v. Day, 155 N. Y. 383, 49 N. E. 1046; Metcalf v. Moses, 161 N. Y. 587, 56 N. E. 67. The existence of fraudulent intent is generally a question of fact, and we cannot say that the record is barren of any evidence which would justify a court in inferring such intent. The trial court found the value of the real estate to exceed $45,000, and there was testimony to that effect. The consideration, consisting (with the exception of a small amount) of past indebtedness due from the father to the daughter, is not claimed by the defendants to have exceeded $38.000. Of this amount over $1,000 certainly was not a valid obligation of the father. The father, by the conveyance and transfer, stripped himself of all his property. This fact was known to the daughter. The parties resided together, and constituted members of the same family.

The transfers were made about a month before the maturity of a note for some $9,000 made by the father, upon which the judgment which was the basis of this action was subsequently recovered. There appears to have been no change in the possession of the personal property transferred, "Courts scrutinize with the utmost care business transactions between husband and wife alleged to be fraudulent as against creditors, because fraud is so easily practiced and concealed under cover of the marriage relation. Fraud is one of the broadest issues known to the law, for it can seldom be proved by direct evidence, but is dependent upon circumstances which, separately considered, may be quite immaterial, but when combined are not only material, but have great persuasive force." White v. Benjamin, 150 N. Y. 258, 265, 44 N. E. 956. The same rule applies, though, possibly, in a less degree, to a transfer from father to daughter when they are both members of the same family.

Part of the consideration which the defendants claim was given for the conveyance is the sum of about $6,000 received by the defendant John C. Miller under the will of his gister, which directed that the same should be held in trust by Miller, the income, and so much of the principal as was necessary, to be applied to his support and to that of his two daughters, and upon his death the same, or what remained thereof, to go to the daughters absolutely. It was testified that this sum had been invested in the real estate transferred. The learned appellate division held that the will created a valid trust, and that the legacy could not be seized by the father's creditors. It said that for this reason the judgment should be reversed. We need not gainsay the ruling of the appellate division as to this legacy. The difficulty in the case is there is nothing in the record to show what disposition the trial court made of this question. No objection or exception presents any ruling for review. The amount of the legacy enters into the reckoning of the total consideration of the conveyance at $38,000. There

is nothing in the point raised by the respondents that the previous mortgage by the debtor to his two daughters is swept away by the judgment, the effect of which is to render only the conveyance between the parties void as against the plaintiff's judgment. We are therefore constrained to reverse the order granting a new trial, and affirm the judgment of the trial term, but this should be without prejudice to any action the daughters may bring to impress a lien upon the real estate conveyed, to the extent of the legacy bequeathed to them by their aunt.

PARKER, C. J., and GRAY, O'BRIEN, HAIGHT, CULLEN, and WERNER, JJ., concur. LANDON, J., not sitting.

Order reversed.