Matter of Henneberger

Gray, J. This is an appeal from an order of the Appellate Division, in the Second Department, reversing an order made at the Special Term; which granted an application of the petitioners for the appointment of commissioners to widen and improve a portion of a highway in the town of 27ew Rochelle. The application was opposed by the town of 27ew Rochelle, the village of 27ew Rochelle and a taxpayer of the town, upon the ground that the act, under which the proceeding was instituted, was unconstitutional. The claim of its unconstitutionality was based upon the repugnancy of its provisions to section 18 of article 3 and, as well, to section 10 of article 8 of the Constitution of the state. The act is contained in chapter 286 of the Laws of 1897 and is entitled, “An act to provide for the widening and improving of 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.” Section one, which provides *424 for the appointment of the commissioners, reads, so far as material, as follows: “ Section 1. In any town, 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, except in the county of Madison, any five or more persons owning lands adjoining or abutting on any highway, which extends within the limits of such town and without the limits of such incorporated village for a distance of at least two and one-half miles, may present to the Supreme Court, at a Special Term thereof to be held in the county containing said town, a petition for the appointment of three commissioners for the purpose of widening and improving such highway or a certain specified portion thereof not less than two miles and a half in length, such portion being wholly without the limits of such incorporated village.” It is conceded by the appellants that if this is a local act, in the constitutional sense, it violates section 18 of article 3 of the Constitution ; which prohibits the legislature from passing a private or local bill for laying out or altering highways. I think that the extraordinary provisions of this act so confine its operation as to make it a local measure, applicable to a limited territory, which is all but identified by the restrictions of section one. If this act can be upheld as a valid exercise of legislative power, it would go far towards frustrating the intention of the people of the state, and it becomes very easy to evade the constitutional inhibition. This section of the Constitution was added by way of amendment in 1874. Its effect was to deprive the legislature of its power to pass laws laying out, or altering, highways and to remit that power to the local authorities, as being a governmental, or administrative, function, which concerned the people of the locality. (People ex rel., Morrill v. Supervisors, 112 N. Y. 588; Matter of Burns, 155 N. Y. 28.) The legislature might pass general laws providing for the cases enumerated in the section and, by s'ection 27 of article 3, “ shall, by general laws, confer upon the boards of supervisors *425 of the several counties of the state such further powers of local legislation and administration as the legislature may from time to time deem expedient.” It is manifest that the purpose of the people, with respect to local governmental measures and to the matters specified in section 18, was to restrict the legislative power and to confine its exercise to the passage of such general statutes as the welfare of the body politic, as a whole, might be deemed to require. The imposition of such a constitutional restriction upon the legislative power was regarded as necessary, in order to put an end to flagrant abuses in its exercise. The provision expressed a fundamental idea in our popular form of government; namely, to commit to local bodies the discharge of functions, which can be as well, if not better, discharged by them. For a variety of reasons, the state legislature should not be concerned with the administration of those local affairs, as to which there exist local legislative bodies ; whose acts, motived by the needs of the citizens, are more sure to be pure and efficient. Notwithstanding the existence of general laws, the statute books were being filled by acts operating upon particular and sectional interests. The abuse became very evident in legislation affecting local highways; as to which there was no justification for the action of the legislature, in the presence of a general statutory system of highway laws. Whether highways should be laid out, or altered, are local questions, which should be determined by the local authorities; not only with greater political propriety, but in the better interest of the portion of the public to be affected. That the present act is expressed in general terms is not, and should not be, decisive of the question of its constitutionality. That is a question which must be decided not by the letter, but by the • spirit, of the act. There is, of course, the difficulty of laying down any definite rule, by which the question of whether a law is local or general may be solved. It was said by Andrews, J., in Ferguson v. Ross (126 N. Y. at p. 464), that “ the fact that an act operates only upon a limited area, or upon persons within a specified locality and not generally throughout the state, is, in most cases, a reas'onably *426 accurate test by which to determine whether the act is general or local.” It was observed in that case, as it had been by Judge Earl, in People v. N. & S. P. R. Co. (86 N. Y. at p. 6), that each case must be determined upon its special circumstances. It has been held, with respect to the operation of section 18, that an act which embraces 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 city, or the inhabitants of a single locality, can, at the time, receive its benefits. (Ferguson v. Ross, supra; Matter of Church, 92 N. Y. 1.) That is a rule, the justice of which need not, now, be gainsaid. It rather serves to emphasize the principle that, in passing upon a statute, its validity, or invalidity, under the constitutional provision, depends upon the special circumstances of the case; which, therefore, can constitute no precedent, except and unless those circumstances are seen to exist in and, therefore, to vitiate another case. Although this act is drawn in general terms, if its provisions are such in number and in character as unduly, with reference to the constitutional purpose, to restrict its operation and, to all intents, to confine it to a particular locality, then, I think, it comes as much under condemnation, as though it designated the locality by name. While an act might be general, if it affected all towns of a class and that class was based on population, or some other condition, which might be recognized as possibly common to a class, or which might permit of classification ; if it contain such added limitations as to restrict its operation to what must always be, in the nature of the case, a very limited number of specified localities, if not, in fact, one, then it is local within the constitutional sense. By the title of this act, its operation is limited to towns having a total population of 8,000, or more, inhabitants and containing an incorporated village having a total population of not less than 8,000 and not more than 15,000 inhabitants. Passing over any possible criticism upon the effect of the limitations in this title and coming to the body of the act, we find there a very *427 remarkable combination of restrictions and such as, if not, by the process of exclusion, serving to identify the particular part of the state to be affected by the law, certainly, very markedly localize its operation. There are, at least, seven conditions in the act; all of which must be met, in order that it shall become operative. The town must have a total population of 8,000, or more, inhabitants. It must contain a village which must be incorporated and- whose population shall not be less than 8,000 and not more than 15,000 ; but that village must not be in the county of Madison. The highway must be one, which extends within the town limits, but without the village limits, and for a distance of at least two miles and a half. The improvement may only be as to a portion of the highway not less than two miles and a half in length, lying without the village limits. This enumeration of restrictions is not only pretty extensive, but very peculiar, and the most casual view suggests a local rather than a general operation for the law. The provisions of the act may not extend to highways in incorporated villages, contained in such towns as are specified in the act; nor to all highways contained in the described towns. To quote the language of Mr. Justice Woodward, in the opinion delivered by him in the Appellate Division, “ any highway of less than two miles and a half in length between the boundaries of an incorporated village, containing at least eight thousand inhabitants, in a township of at least eight thousand inhabitants, and the boundaries of such township, could not be improved under the operation of this statute. The whole operation of the statute is thus confined to the few townships in which there is a highway two and one-half miles long, outside of the limits of an incorporated village of at least eight thousand inhabitants, and in any event it cannot extend beyond the limits of the town in which it is put in operation; thus confining its operation to a very limited number of specified localities.” The exception of the county of Madison singularly emphasizes an intention to guard against a possible general operation of the act. In my opinion, to call this act a general law would be absurd. It is a device to evade a wholesome *428 constitutional provision; so transparent as to be clear to the most ordinary intelligence. Enumeration of restrictions upon the application of the act has reached a point where it ceases to be classification and, as .Mr. Justice Cullen well suggested, serves the purpose of identification. But it is said that the decision in Matter of Church (supra) justifies this kind of legislation. I do not think so and a comparison of the act which was in question in that case with the present act, clearly, shows fundamental differences, which distinguish them. The title of the act of 1815 was, “ An act to confer on boards of supervisors further powers of local legislation and administration, and to regulate the compensation of supervisors.” Its provisions were applicable “ in any county containing an incorporated city of one hundred thousand inhabitants and upward, when any territory within such county and beyond the limits of such city has been mapped out into streets and avenues, in pursuance of law.” What comparison does that act, with its provisions permitting of so general an application, bear to the present act? The act in its application to the counties of the state, while, possibly enough, for the moment, available to one; contemplated a condition of things, which, not unreasonably, might be considered as possible' generally, where a city had grown to the required size in population and the territory beyond its limits should be mapped out for avenues and streets. The act confers full powers upon the boards of supervisors; while this act deprives the local authorities of their vested and appropriate powers and the only resemblance between the acts lies in the territorial restriction. But the former act embodied a general idea, concerning the extension of the limits of such cities by the laying out of highways. There was an appreciable public purpose; the accomplishment of which was left to local officers. This legislation takes away from the local authorities the power to perform the work through their own officers, or to supervise the expenditure of the moneys for which the town is to become obligated. No case can be found to compare with this attempt to interfere with the- self-govern *429 ment of localities. Our attention is directed to a number of acts, which have been passed by the legislature, where their operation was made dependent upon limitations by population and which, it is urged, would be endangered by a decision that the act in question was local and, therefore, unconstitutional. I am not unmindful of this feature of the case. It is important, because it is, undoubtedly, true that the constitutional provision, under consideration, has somewhat suffered at the hands of the legislature, in efforts to evade its effect. So far as they have gone in a healthful and reasonably public direction, I recognize that it is too late to insist upon strict construction and that we must take up that work, at the present time, with a liberal view of the law and the situation. I admit that, where there has been a practical construction placed by the representatives of the people upon the constitutional provision, and where great public works in localities have been carried out through the assistance of large loans and investments of moneys, advanced upon the faith of the validity of the legislation which authorized them, it would not do for the courts to construe in too strict or illiberal a sense. But while the legislature, as previously suggested, has gone very far in the enactment of laws containing territorial restrictions upon their operations, I find none, and none are pointed out, with so many as we find in the present act. In so far as acts have been made, by their terms, applicable to counties, cities, towns or villages, according to their limits of population ; or to the cases of counties or towns, which adjoin cities of a certain population, although, by strict construction, they might be deemed to contravene the section of the Constitution, they will be saved from condemnation by the rule of construction, which determines their validity as general laws upon a consideration of the special circumstances and declines to view them as only local, because by reason of a limitation based on population, or some condition having reference to population, but 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 *430 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 legislative body may be justified upon such grounds. The question is, whether the constitutional ¡irovision 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.