Appropriation of Public Property

Art. III, § 20

judicial decisions in different forms, but it is believed that they all concur in the same general result." Thus an act (ch. 291, Laws of 1889, as amended by ch. 314, Laws of 1890) authorizing the city of Syracuse to take surplus water from Skaneateles lake, which lake had been appropriated by the state "for a reservoir and feeder to the Erie canal," does not come within this provision requiring a two-thirds vote for passage, as the state never acquired the ownership of the mass of water in the lake, but simply the right to the use of so much as is necessary for canal purposes; and the condition of the grant to the city in the act was such that no property right or interest which the state owned was transferred, lost or impaired. Sweet v. Syracuse, (1891) 129 N. Y. 316, 27 N. E. 1081, 29 N. E. 289, reversing 60 Hun 28, 14 N. Y. S. 421. Similarly, the charter of the Niagara County Irrigation and Water Supply Company (Laws of 1891, ch. 259, §§ 4, 6), authorizing that corporation to take water from the Niagara river, construct, operate and maintain canals, and to lay pipes or tunnels under the waters of the Niagara river, provided pipes or tunnels are so laid and constructed as not to interfere with the navigation of said river, does not appropriate to the use of the corporation any property of the state in the waters of the stream and is not invalid because it did not receive the assent of two-thirds of the members elected to each branch of the legislature. Niagara County Irrigation, etc., Supply Co. v. College-Heights L. Co., (1906) 111 App. Div. 770, 98 N. Y. S. 4. Right to lay pipes in bed of stream.- Chapter 259, Laws of 1891, authorizing the Niagara County Irrigation and Water Supply Company to lay pipes or tunnels under Niagara river, provided the pipes or tunnels are so laid as not to obstruct the navigation of the river, does not transfer any title to the bed of the river and hence does not work an appropriation of public property. Niagara County Irrigation, etc., Supply Co. v. College-Heights L. Co., (1906) 111 App. Div. 770, 98 N. Y. S. 4.

Waiver of escheat.- The Act of April 29, 1883, authorizing the commissioners of the land office to release certain lands escheated to the state, is not, so far as respects lands which have escheated since its passage, a law appropriating the public moneys or property. Englishbe v. Helmuth, (1850) 3 N. Y. 294. But chapter 207, Laws of 1893, making nonresident aliens competent to inherit real property in this state is within the inhibition of this section if given a retroactive effect and held to waive escheats that had already occurred under prior laws. The statute when so construed clearly effects a disposition of public property for private purposes. McCormack v. Coddington, (1806) 184 N. Y. 467, 77 N. E. 979, reversing 109 App. Div. 741, 96 N. Y. S. 571.

III. LOCAL AND PRIVATE PURPOSES.

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Reference to matter outside of statute in determination of nature of purposes. Whether a law appropriates public property for a private or local purpose must be determined from the face of the law itself, not from matters aliunde; and the judiciary cannot institute an inquiry into the motives of the legislature in order to attribute to it other purposes than those clearly expressed or fairly implied in its enactment. Waterloo Woolen Mfg. Co. v. Shanahan, (1891) 128 N. Y. 345, 28 N. E. 358, 14 L. R. A. 481. Compare People v. Allen, (1870) 42 N. Y. 378, infra, paragraph Significance of “ Local.” The act (ch. 325, Laws of 1888) there under consideration provided "for an expenditure of fifteen thousand dollars for the purpose of dredging and excavating the channel of a navigable river and a private race intersecting the canal, so as to facilitate the passage of canal boats therein, from the canal." Referring to those provisions, the court said: "The purpose thus expressed is not private or local, but public, inasmuch as the general improvement of the public highways of the state, whether canals or rivers that are navigable, is for the benefit of the state at large, though some locality or

Art. III, § 20

Appropriation of Public Property

some individuals may be benefited more than others. The expenditure may in fact be improvident and the work may prove to be useless to the public, but the legislature, as the depository of the sovereign powers of the people, must necessarily be the judge of the propriety and utility of making it. If it were otherwise, every appropriation of money by the legislature could be assailed in the courts, at the suit of private individuals, on the ground that they are useless and intended for a purpose other than is plainly expressed, in order to evade some provision of the organic law."

Meaning of "private or local."-To bring a bill within this constitutional provision, requiring a two-thirds vote, the purpose of the appropriation must be either private or local. It need not be both. It may be private and not local, or it may be local and not private." People v. Allen, (1870) 42 N. Y. 378.

Significance of "local."- Generally speaking, an appropriation of money is for a local purpose when the money is to be expended in a particular locality and the people of that locality are to be directly and mainly benefited. People v. Allen, (1870) 42 N. Y. 378. Such an appropriation does not lose its character as local by reason of the fact that the public will be incidentally and remotely benefited by the expenditure. "All appropriations for local improvements which are not at the same time private, would be, in certain remote sense, beneficial to the public, as any portion of the public could have the benefit of the appropriations by going to the locality where the improvements were made; and if this circumstance would strip the improvements of their local character, then no appropriation could be said to be for a local, unless it was also for a private purpose, and violence would thus be done to the language of the constitutional provision under consideration." Per Earl, Ch. J., in People v. Allen, (1870) 42 N. Y. 378; People v. Murray, (1896) 149 N. Y. 367, 44 N. E. 146, 32 L. R. A. 344, affirming 4 App. Div. 185, 38 N. Y. S. 909; People v. Highway Com'rs, (1873) 54 N. Y. 276, 13 Am. Rep. 581. Thus, an appropriation made for the purpose of improving the navigation of Boquet river from its mouth to Willsborough Falls is for a local purpose insomuch as the improvement would chiefly and directly promote the interests of the people at the falls and would not subserve any purpose of the public generally. People v. Allen, supra. Compare Waterloo Woolen Mfg. Co. v. Shanahan, (1891) 128 N. Y. 345, 28 N. E. 358, 14 L. R. A. 481, supra, paragraph Reference to Matters Outside of Statute, etc. Similarly, the act to vest certain real estate belonging to the state in the town of Marlborough" (ch. 776, Laws of 1868), providing for the laying out of a highway in said town, and taking and vesting in the town for the purposes of the highway the title to lands belonging to the state, makes an appropriation of public property for a local purpose within the meaning of this section. People v. Com'rs, supra. But "it is not every appropriation for what, in some sense, may be called a local purpose, that comes within this provision. Where the appropriation of money is for state purposes, although its expenditure is confined to a locality, it does not require a two-thirds vote. So, too, appropriations may be made, in a certain sense, for a private purpose, and yet not require such a vote. Money may be appropriated to pay individuals for property purchased for the state or for salaries or wages without requiring a two-thirds vote, and thus the appropriation and supply bills annually passed by the legislature, unless they contain donations of public moneys or property for local or private purposes, have never been understood to require such a vote." Per Earl, J., in Sweet v. Syracuse, (1891) 129 N. Y. 316, 27 N. E. 1081, 29 N. E. 289, reversing 60 Hun 28, 14 N. Y. S. 421.

Discharge of moral obligation of state. An appropriation made in discharge of an obligation morally though not legally binding on the state is for a public and not a private or local purpose. Waterloo Woolen Mfg. Co. v. Shanahan, (1891) 128 N. Y. 345, 28 N. E. 358, 14 L. R. A. 481; Wheeler v. State, (1907) 190 N. Y. 406, 83 N. E. 54, 123 A. S. R. 555, reversing 118

App. Div. 913, 103 N. Y. S. 1150; Morris v. People, (1846) 3 Denio 381. Thus, a bill (ch. 325, Laws of 1888) containing provisions for the restoration to their original channel of waters that had been diverted therefrom is not within the requirements of this section, the purpose of restoring to lower riparian owners the right which they had enjoyed prior to the diversion being public in its nature. Waterloo, etc., Mfg. Co. v. Shanahan, supra. Similarly the allowance of a claim supported by a moral obligation and founded in justice is not an appropriation of public funds to a private purpose even though by reason of technicalities the claim is not legally binding. The assent of two-thirds of the members of each house is not necessary, therefore, to the passage of an act making provision for such an allowance. Wheeler v. New York, supra; Morris v. People, supra. See further as to this point Art. 3, §§ 19 and 28; Art. 8, §§ 9 and 10.

The acquisition of water power sites is a public undertaking and money devoted to accomplish that end is not appropriated for a private or local purpose. Wherefore, statutes (ch. 452 and 453, Laws of 1913) making appropriations therefor are not within the requirement of this section. Long Sault Development Co. v. Kennedy, (1913) 158 App. Div. 398, 143 N. Y. S. 454, affirmed, (1914) 212 N. Y. 1, 105 N. E. 849, Ann. Cas. 1915D 56.

Appropriation to railroad." It must be regarded as settled in the jurisdiction of this state, that the appropriation of property to the construction or use of a railway for the transportation of persons or property, is an application of such property to the use of the public. The doctrine applies to all railways, whether traversing the state or the streets of a city; and of course the motive power used does not affect the question." People v. Kerr, (1863) 27 N. Y. 188.

§ 21. Appropriation bills.

No money shall ever be paid out of the treasury of this State or any of its funds, or any of the funds under its management, except in pursuance of an appropriation by law; nor unless such payment be made within two years next after the passage of such appropriation act; and every such law making a new appropriation or continuing or reviving an appropriation, shall distinctly specify the sum appropriated, and the object to which it is to be applied; and it shall not be sufficient for such law to refer to any other law to fix such sum.

Const. 1846, Art. VII, § 8; continued without change in Const. 1894, Art. III, § 21.

Local taxes as fund under management of state.- An act (ch. 907, Laws of 1869), directing that the taxes collected in any municipality on the assessed valuation of any railroad shall be applied to the redemption of bonds issued by the municipality to raise money in aid of the construction of such railroad is not violative of this section. The taxes so raised and so applied are never deposited in the treasury of the state and never come under state management. In re Clark, (1887) 106 N. Y. 104, 12 N. E. 341.

Legacy or distributive share of unknown legatee or distributor as fund under management of state. Where a person entitled to a legacy or distributive share of a decedent's estate is unknown, and the money has been paid into the state treasury pursuant to the directions of the Code of Civil Procedure (§ 2747), it is not money of the state, or belonging to any of its funds, or funds under its management within the meaning of the provision

of this section which prohibits the paying out of such moneys “except in pursuance of an appropriation by law," and upon compliance with the requirements of the Code and production of a certified copy of order directing payment of the legacy or distributive share to a claimant, it is the duty of the comptroller to draw his warrant therefor without such an appropriation. People v. Chapin, (1886) 101 N. Y. 682.

Earnest money on contract of sale of public lands as state fund.— Earnest money received by land commissioners on a contract of sale becomes at once part of the state funds and cannot be taken from the state except by an appropriation by the legislature. Switzer v. Com'rs for Loaning Moneys, etc., (1909) 134 App. Div. 487, 119 N. Y. S. 383.

Allowance of credit on taxes as appropriation. Where the comptroller, acting under the authority of chapter 463, Laws of 1889, has readjusted the franchise tax of a corporation and has allowed the corporation a credit on its amount for excess taxes already paid, a second corporation to which a portion of that credit has been assigned is not entitled to have the comptroller apply the portion of the credit by it required to the payment of its taxes. "These taxes are payable to the treasurer of the state, and if the credit transferred to the relator becomes operative as a payment, taxes to that amount are diverted from the treasury for the purpose of the payment of a claim against the state held by the relator as the assignee of the Panama Company. This operates indirectly, through the act of the comptroller in transferring the credit, as a payment of a claim which the comptroller had no right directly to pay. He had no right to draw a warrant on the treasury for its payment, and no money could be paid out of the treasury except in pursuance of an appropriation by law." People v. Roberts, (1898) 30 App. Div. 78, 51 N. Y. S. 747, affirmed, (1898) 156 N. Y. 693, 51 N. E. 1093. See also People v. Wemple, (1892) 133 N. Y. 617,

30 N. E. 1002.

Reference to comptroller's report to fix amount and object of appropriation. The Act of 1872 (ch. 700) appropriating over $4,000,000 to meet "the present acknowledged deficiency, and the estimated liabilities of the general fund up to the 30th day of September, 1872, for the payment of which no appropriations have been made, but which such indebtedness has been incurred and such liabilities created according to the report of the late comptroller, transmitted to the legislature January 2d, 1872," does not sufficiently state "The the amount and object of its appropriation and is therefore invalid. comptroller's report, if accessible, may distinctly specify the debts and liabilities acknowledged and estimated,' to whom payable, and for what contracted, but this is not a compliance with the important requirement of the Constitution, that the object as well as the amount of the appropriation shall be distinctly specified in the act." People v. Kings County, (1873) 52 N. Y. 556.

§ 22. Appropriation bills not to embrace other subjects.

No provision or enactment shall be embraced in the annual appropriation or supply bill, unless it relates specifically to some particular appropriation in the bill; and any such provision or enactment shall be limited in its operation to such appropriation. Const. 1894, Art. III, § 22.

§ 23. Statutory revision bills excepted from certain sections. Sections seventeen and eighteen of this article shall not apply to any bill, or the amendments to any bill, which shall be reported

to the Legislature by commissioners who have been appointed pursuant to law to revise the statutes.

Amendment of 1874.

Presumption as to report. In accordance with the general rule that every presumption is in favor of the constitutionality of a statute, an act otherwise void under sections 17 and 18 of this article will be presumed, in the absence of evidence to the contrary, to have been reported by commissioners appointed pursuant to law to revise the statutes. People v. Petrea, (1883) 92 N. Y. 128. See also People v. Ebelt, (1905) 180 N. Y. 470, 73 N. E. 235. Evidence as to report. It may be shown by matter aliunde that an act within the prohibition of sections 17 and 18 was not in fact reported by a commission appointed to review the statutes. For that purpose reference may be made to the journals of the legislature and to the original act. People v. Petrea, (1883) 92 N. Y. 128. In that case the court said: "The question whether a statute is constitutional, is in its nature a judicial one. The question most frequently arises upon the face of the statute itself, and the question of constitutionality is determined by comparing the statute with the constitution. But it often depends upon extrinsic facts, not appearing upon the statute book. . . . The constitution would afford very slight protection against legislative usurpation, and the object sought to be accomplished by the amendment in question, could be easily frustrated, if the mere fact that the legislature had passed a local or private bill in one of the enumerated cases, created a conclusive presumption that the bill was originally reported by commissioners, and was within the exception of section 25. The tendency of judicial authority supports the proposition that whenever a question arises as to the constitutionality of a statute, the court may resort to any source of information which in its nature is original evidence of any fact relevant to the inquiry. . . . This rule excludes all inquiry as to the motives of the legislature in passing particular statute. Such an inquiry is wholly irrelevant, the only inquiry permitted being whether the enactment, the constitutionality of which is assailed, is forbidden by the constitution. We think the offer to prove by the journal of the legislature by the original act, that the act of 1881 was not reported by commissioners, was improperly overruled.”

Art. III, § 24.

8 24. Tax laws to state amount and object.

Every law which imposes, continues or revives a tax shall distinctly state the tax and the object to which it is to be applied, and it shall not be sufficient to refer to any other law to fix such tax or object.

Const. 1846, Art. VII, § 13; continued without change in amendments of 1874, Art. III, § 20, and in Const. 1894, Art. III, § 24.

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Object and rule of construction of section. The object of this provision was to convey information to the members of the legislature and to the people, and it should have a practical construction, with a view to accomplish its purpose so far as attainable, and to carry out the policy which we may assume dictated it." In re McPherson, (1877) 104 N. Y. 306, 10 N. E. 685, 58 A. S. R. 502.

Nature of tax referred to.- The language of this section is general and is broad enough, if literally construed, to include every tax which the legislature may impose. It has, however, been given a practical construction by the courts. 'We are of the opinion," the Court of Appeals has said, "that

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