People ex rel. Everson v. Lorillard

• Decision Date: 04 October 1892
• Citation: 135 N.Y. 285,31 N.E. 1011
• Parties: PEOPLE ex rel. EVERSON v. LORILLARD et al.
• Court: New York Court of Appeals Court of Appeals

135 N.Y. 285

31 N.E. 1011

PEOPLE ex rel. EVERSON

v.LORILLARD et al.

Court of Appeals of New York.

Oct. 4, 1892.

Application for mandamus on the relation of Duane S. Everson against Jacob Lorillard and another. From a judgment of the general term (20 N. Y. Supp. 68) affirming the order granting the writ, defendants appeal. Affirmed.

STATUTES-AMENDMENTS-SETTING OUT AMENDED PORTIONS.

Laws 1890, c. 249, s 2, providing that proceedings by the city of New York to acquire real estate for public use shall be according to the provisions of Laws 1883, c. 490, and all payments for said property, and for expense of acquiring the same, shall be made in the manner and out of the money provided in said lastmentioned act, is not in conflict with Const. art. 3, s 17, declaring that no act shall be passed, making any existing law a part of said act, or be applicable under it, except by inserting it in such act. 20 N. Y. Supp. 68, affirmed.

William H. Clark,(D. J. Dean, of counsel,) for appellants.

N. J. Waterbury, Jr., (A. B. Johnson and H. D. Hotchkiss, of counsel,) for respondent.

O'BRIEN, J.

The order in this case which has been brought here for review directed a peremptory writ of mandamus to issue to the corporation counsel of the city of New York, requiring him to take charge of and conduct, with all practicable speed, any and all proceedings authorized by law for the appointment of commissioners of appraisal, to ascertain the compensation to be paid to the owners or persons interested in certain real estate, designated upon a triplicate map made and filed in pursuance of chapter 249, Laws 1890, and to fix the time and place for the first meeting of the commissioners so appointed. The general term having affirmed the order, the corporation counsel has appealed to this court, and the sole ground of the appeal is that the second section of the act above mentioned is in conflict with section 17 of article 3 of the constitution of this state, which declares that ‘no act shall be passed which shall provide that any existing law, or any part thereof, shall be made or deemed a part of said act, or which shall enact that any existing law, or any part thereof, shall be applicable, except by inserting it in such act.’ The act (chapter 249, Laws 1890) provided for the acquisition and improvement, by the city of New York, of certain lands in connection with Washington bridge, over the Harlem river, and the second section, or that part of it which requires action to that end to be taken by the authorities of the city of New York, is as follows: ‘The said commissioners, on behalf of the mayor, aldermen, and commonalty of the city of New York, York Shall thereupon apply forth with to the supreme court, at any special term thereof held in the first judicial district, for the appointment of three disinterested persons, residents of the city of New York, as commissioners of appraisal, to ascertain and appraise the compensation to be made to the owners and all persons interested in the real estate shown on said profile maps, which shall not have been theretofore acquired by the city of New York, for the fee of the same. Such proceedings shall be had upon the said application, except that the same shall be in the first judicial district, as are provided for the acquisition of real estate by chapter 490, Laws 1883, and with the like effect; and all payments for the real estate so acquired, and for the charges and expenses of acquiring the same, shall be made in the manner in which such payments are to be made, and out of the moneys therefor to be raised, as provided in said last-mentioned act.’ Section 3 then provides that the property acquired, with the improvements thereon, ‘shall be kept and maintained by the department for public parks, as public parks and highways, and for no other purpose, except the Croton aqueduct; and the expenses thereby incurred shall be paid in the manner provided by law for the payment of the other expenses of the said department.’ The difficulty suggested with respect to this statute is that, while it authorizes the city to acquire lands, it does not in extenso prescribe the procedure under which they are to be obtained, but for that purpose refers to another statute, namely, chapter 490, Laws 1883. The latter act is the one which confers power upon the city of New York to construct a new aqueduct and to acquire lands for that purpose. The provisions conferring the power to construct, the procedure under which the lands were to be acquired, and the manner in which the money was to be raised to pay for them, are all set forth in that act.

It is somewhat difficult to give to that provision of the constitution invoked in this case to condemn the legislation in question a reasonable construction, that would be applicable in every case. A provision of the fundamental law which attempts to regulate the form in which the legislative will is to be expressed in the enactment of laws is difficult of a just and reasonable application in all cases, and is, at best, of very doubtful utility. When the organic law has fixed the limits of legislative power, and has placed some general and suitable restraints upon its methods of procedure, its proper office is generally fulfilled; but an attempt to prescribe the language or the forms to be used or observed by the legislature in the enactment of statutes must inevitably result either in the condemnation of numerous legislative acts, perfectly wholesome and just, or in the liberal exercise by the courts of their undoubted power to give to all laws a just and rational construction and meaning. A constitutional provision intended to operate as a restraint upon the legislature, with respect to the language and forms of expression to be used in framing acts of legislation, is not to be so construed as to embrace cases not fairly within its general purpose or policy, or the evils which it was intended to correct, though they may be within its letter. Since the incorporation of this section in the constitution, in 1875, hundreds of statutes have been passed that must be held to be in conflict with it, if we adopt...