App. Div.] FIRST DEPARTMENT, JULY TERM, 1896. these authorities. That duty must properly be left to the court from which the broad and general rule has emanated. It is contended, too, that the rule laid down in these authorities has been changed by the classification of cities provided for in section 2 of article 12 of the new Constitution. We think this classification has no relation to general, private and local laws, as these terms are used in other provisions of the Constitution. This classification was simply for the purpose of regulating the passage of special city laws, and of giving the local authorities a proper opportunity of asserting themselves with regard thereto. The division in this section of laws relating to cities, into general city laws and special city laws, was certainly not intended to affect the well-established meaning of general, private and local laws under existing adjudications. But, even if the act were held to be local, we should have to go further and see whether it grants to any such corporation, as the Constitution refers to in this connection, the right to lay down railroad tracks. We do not think that this provision of the Constitution was intended to cover municipal or other governmental corporations. The corporations contemplated by the section under consideration were those referred to in the 3d section of the 8th 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, corporations organized by individuals, in one sense, it may be, 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 corporation, from lending its money or credit to any corporation. The distinction between cities and ordinary corporations is thus clearly drawn. The intention plainly was to prohibit the Legislature from passing any private or local act granting to any such ordinary corporation, whether private or quasi public, the right to lay down railroad tracks. There was no such intention with regard to counties, cities, towns or villages, so far as these governmental agencies might operate within legitimate local purposes for the benefit of the inhabitants. FIRST DEPARTMENT, JULY TERM, 1896. [Vol. 8. The next question is whether the act conflicts with section 6 of article 1 of the Constitution, which provides that private property shall not be taken for public use without just compensation. This question is incidental, and it is at least doubtful whether it goes to the root of the general authority conferred by the act. It may, however, be briefly considered. Section 40 directs the rapid transit board to prepare maps or plans of the lands and property necessary to be acquired, or to which there may be appurtenant rights, terms, easements, franchises or privileges necessary to be acquired for the construction of the road, specifying upon the maps, or upon accompanying memoranda, the exact estate or interest requisite. One set of the maps and memoranda is directed to be filed with the department of public works, or other chief executive department having charge of the streets, and one with the register or county clerk. Provision is then made for the appointment of commissioners of appraisal, and they are required to take their oath and file it in the office of the clerk of the county. Upon the filing of this oath it is provided (§ 47) that the city shall at once become seized of all the lands, estates and interests described in the maps and memoranda and have the right to enter into possession of the same; but that it shall become forthwith liable to the owner of the same "for the true and respective values thereof, together with interest thereon from the time of filing the said oath," etc. It is, however, provided that "no action shall be brought to recover the amount of such value or interest unless within eighteen months after the filing of such oath, a report shall not have been duly made by commissioners of appraisal as herein provided, or such report shall not have been confirmed by the Supreme Court as herein provided, so that the said city shall be liable to forthwith pay the amount by such report ascertained to be due for such value or interest." Sections 48 to 52 prescribe for the taking of testimony by the commissioners and the confirmation of their report by the Special Terin of the Supreme Court. Section 53 makes it obligatory upon the city to pay any award within four calendar months from the time of the confirmation of the report, with interest from the date of the filing of the oath. In default of such payment, the owners are permitted to bring an action to recover the amount, "in which it shall be sufficient to declare generally for so much money due to the FIRST DEPARTMENT, JULY TERM, 1896. App. Div.] plaintiff or plaintiffs therein by virtue of this act for property taken or extinguished for the purposes herein mentioned, and the report of said commissioners, with proof of the right and title of the plaintiff or plaintiffs to the sum or sums demanded, shall be conclusive evidence in such suit or action." These provisions constitute a certain, definite and adequate source and manner of payment. They are substantially like those which were found to be sufficient in The Matter of the Application of the Mayor (supra). It is well settled that it is not necessary that the act shall provide for payment in advance of the taking, so long as the provision for compensation is certain and adequate. (Sweet v. Rechel, 159 U. S. 380; Cherokee Nation v. Kansas Railway, 135 id. 641; Rider v. Stryker, 63 N. Y. 137; Matter of U. S., 96 id. 227.) Undoubtedly the provision should also guarantee prompt payment, that is, payment without any unreasonable or unnecessary delay. We think that, considering the nature of the present undertaking and the amount of property likely to be taken, this condition was fairly fulfilled by the provisions of the act. The remaining points may be briefly disposed of. The office of rapid transit commissioner was not in existence at the time when the Constitution, which is said to have been violated by the manner in which the present rapid transit commissioners were appointed, went into effect. It has been repeatedly held that the provisions of this Constitution, with regard to the election or appointment of city, town or village officers, related solely to offices which were in existence at the time of its adoption. (People ex rel. Kingsland v. Palmer, 52 N. Y 83; People v. Draper, 15 id. 532; People v. Pinckney, 32 id. 377.). As to officers whose offices might thereafter be created by law, the provision was that they should be elected by the people, or appointed as the Legislature might direct. As to such new offices, it has been held that the legislative power is not in any wise restricted; that it embraced all officers of every description, both local and general, and that the Legislature was authorized to confer the power of appointment even upon such bodies as the Chamber of Commerce, and upon such persons as the presidents of marine insurance companies. (Sturgis v. Spofford, 45 N. Y. 446.) In this case CHURCH, Ch. J., said: "It is insisted that the power of appointment can only be conferred upon some body or officer repre FIRST DEPARTMENT, JULY TERM, 1896. [Vol. 8. senting or responsible to the people. The language of the Constitution does not justify this position. The power is not restricted. * * The omission of any direction as to the appointment of such officers is significant of the intention of the framers and the people to leave the unrestricted power in the Legislature.” This unrestricted power carried with it, as an incident, the power to appoint directly, as well as through some other agency — a power which has been repeatedly exercised without question, notably in The Matter of the Central Park (Laws 1858, chap. 771) and in the case of the aqueduct commissioners, where vast interests were involved, and which in Astor v. The Mayor (62 N. Y. 567) was even extended to cover certain acts, the power to perform which was, at the time of the adoption of the Constitution, vested in local officers elected by the people. It is also claimed that the Legislature had no authority to provide a referendum to the people of the city. It has, however, been abundantly settled that there is no constitutional objection to an enactment referring to a municipality or other civil division of the State the question whether it desires the passage of a statute particularly affecting it. (Bank v. Rome, 18 N. Y. 38; Starin v. Genoa, 23 id. 439; Bank of Chenango 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 on the last assessment for State or county taxes prior to the incurring of such indebtedness." It is to be presumed that public officers will do their duty; and one of their first duties is to respect and obey the Constitution. The act is not invalid, because under it the commissioners might possibly make a contract which would transgress the provision in question; in other words, make an illegal contract in disregard of their duty. The act itself contemplates nothing of the kind. Nor does it appear as matter of fact that such a contract will necessarily follow the due execution of the act. App. Div.] FIRST DEPARTMENT, JULY TERM, 1896. We have thus considered all the questions presented by the present record, and our conclusion is that the acts in question are not in conflict with any provision of the Constitution. The judgment appealed from was, therefore, right, and should be affirmed, with costs. VAN BRUNT, P. J., and WILLIAMS, J., concur. INGRAHAM, J. (dissenting): The question presented on this appeal is whether chapter 752 of the Laws of 1894 and chapter 519 of the Laws of 1895, whereby provision is made for the issue of bonds by the city of New York to pay for the construction of railroads in the city of New York, are in violation of the Constitution. A majority of the court has determined that it is constitutional for the Legislature to require the city of New York to incur an indebtedness to be repaid by taxation, the proceeds to be used to construct a railway. I dissent from this proposition, and shall endeavor, as briefly as possible, to state the grounds upon which, in my opinion, this legislation violates the express prohibitions of the Constitution provided to protect the owners of property subject to taxation from being taxed for the construction of public works, other than those which relate to ordinary municipal purposes. In deciding this question I have not lost sight of the importance of proper and convenient rapid transit, realizing fully the desirability of additional means of communication between the different parts of the city, and how necessary it is for the convenience of a large proportion of our citizens that additional facilities should be provided to enable them to pass from their homes to their places of business; but the question presented to us is not in the nature of a legislative and administrative question, judging the advantages or disadvantages of a plan proposed. Upon us devolves the duty of determining whether a new departure in the legislative history of the State is in violation of the fundamental law of the State which has limited the use to which money raised by taxation or by obligations which are to be paid from taxation, may be applied. That this legislation is an absolutely new departure in the political history of this State none will deny. While certain cities and towns were, APP. DIV.-VOL. VIII. 33 |