I dissent from the proposition, in effect asserted, that an act, broad enough to constitute a valid exercise of an existing legislative power, may nevertheless be set aside by a court as unconstitutional because in its opinion the legislature did not realize that it possessed the power, and, therefore, must be deemed not to have intended to exert it. Such a holding would introduce a new and elastic rule for the construction of alleged unconstitutional enactments. According to it the courts may go behind a statute, if on its face it be within the legislative power, and inquire as to the intent of the legislature in exercising certain powers not generally known to the members of that body. Of course the converse of the proposition should follow, that if on its face the enactment be in excess of the legislative power, the courts may, nevertheless, ascertain that the intent was to so limit the act as to bring it within the constitutional authority of the legislature, and thereupon adjudge the act to be no broader than the intent, and, therefore, free from constitutional difficulties. Before proceeding further with the subject *Page 441 attention is called to the situation presented by this record, to the end that it may be seen that the assertion with which this memorandum opens is not overdrawn.
The question presented is whether chap. 207, Laws of 1851, is constitutional. It declared Moose river to be a public highway for the purpose of floating logs. The plaintiff says the act is unconstitutional because it does not contain adequate provision for compensating the riparian owner. To this defendants make answer that the state, by the terms of its grant, retained five acres out of every hundred for highways (Macomb Patent, executed Jan. 10, 1792), and in declaring Moose river a public highway, it but took possession of its own land reserved for that special purpose and in less amount than the acreage reserved. The learned justice who wrote at the Appellate Division an unanswerable opinion, except on this proposition, summarized his views as to it as follows: "(1) That in and by the Macomb patent the state did expressly reserve to itself for highway purposes five acres out of every one hundred acres of land thereby conveyed; (2) that the land thus reserved was not specifically designated, but related to the entire tract; (3) that the power thus reserved authorizes the state at any time to appropriate five per cent of the land embraced in this tract to highway purposes; (4) that in the absence of any language in the act of 1851 showing that such was the intent of the legislature, it will not be presumed that, in declaring the North Branch of the Moose river a highway for a particular purpose, without providing for compensation to riparian owners, there was any exercise of the power reserved by the Macomb patent, at least until it was made to appear that such power has not already been exhausted."
In other words, the court said the state owned the land and the legislature had the power to appropriate it to highway purposes, but, as it did not say in the statute it was exercising the power, the presumption is that it did not intend to do so, and, therefore, an act on its face constitutional in the light of these facts becomes unconstitutional because the court cannot *Page 442 find evidence of an intent to exercise its power. That is not now and never has been the rule or one of the rules by which to test the constitutionality of a statute. The test is one of power. Judge Cooley states it in these words: "From what examination has been given to this subject, it appears that whether a statute is constitutional or not is always a question of power." (Cooley on Const. Lim. 220; 3 Am. Eng. Ency. of Law, 674, 675, and cases cited.) So, if the legislature had the power to appropriate Moose river and the lands under it for highway purposes, the courts cannot condemn as unconstitutional an act that accomplishes that result. It is constitutional if the power exists, for the act is a proper legislative method of exercising the power.
The legislature having omitted all reference to the source of its power, it is urged that it would be in accordance with authority to hold that the legislature intended not to exercise a power that rightfully belonged to it, but instead intended to attempt a usurpation of power withheld from it by the people through the organic law. There is no such authority, and the reasoning so far brought to my attention fails to satisfy me that one ought to be made in this case. We should stop with the declaration that the legislature had the power to pass the act that it did and, therefore, it is constitutional.
But if we were to follow the example of the Appellate Division and read the act in the light of surrounding circumstances, we should find ourselves confronted with the general rule that courts are to read statutes that are free from ambiguity as they are written, and thus reading this act we fail to find that the legislature did not intend to exercise any power that it had. On the contrary, on its very face, may be found evidence that the legislature had in mind this reserved power, for the subject of compensation was considered, the act providing that the owners of booms, dams and other improvements along the stream should be paid a sum awarded by commissioners to be appointed by the county judge. The provision for the compensation of the owner of improvements and the omission of compensation to those who were simply *Page 443 riparian owners, indicates not merely a general consideration of the subject of compensation, but also a determination that the owners along the banks of the stream were not entitled to compensation. Such a determination could have been founded only upon the right reserved by the state in its grant to the plaintiff's predecessor in title, to take five per cent of the land for highway purposes; and by this act it simply carved out of the tract granted the land reserved by it. It is true that the act omits all reference to the source of the power it undertook to exercise, but that is not unusual, to say the least, on the part of the supreme law-making body. Even a common council may safely pass an ordinance without reciting the source of power in execution of which it is passed. (Dillon on Mun. Corp. §§ 318-601.)
The mistake made by the courts below was in not applying the rule that the presumptions are all in favor of the constitutionality of a statute. Judge Cooley states the rule as follows: "Whenever an act of the legislature can be so construed and applied as to avoid conflict with the Constitution and give it the force of law, such construction will be adopted by the courts." (Cooley on Const. Lim. 218, 219.) This will be done, although the construction so put upon it cannot be the most obvious or natural or the literal one. (3 Am. Eng. Ency. of Law, 674, note, and cases cited.) This rule has been frequently applied in this court. (People ex rel. Burrows v.Supervisors, 17 N.Y. 241; People ex rel. Bolton v.Albertson, 55 id. 54; Matter of Gilbert El. R'way Co., 70 id. 367.) It was recently stated as follows: "Where there is room for two constructions of a statute, both equally obvious and equally reasonable, the court must, in deference to the legislature of the state, assume that it did not overlook the provisions of the Constitution, and designed the act to take effect. Our duty, therefore, is to adopt the construction which, without doing violence to the fair meaning of the words used, brings the statute into harmony with the provisions of the Constitution." (Matter of N.Y. L.I. Bridge Co., 148 N.Y. 540, 551.) So in this case we cannot presume an intent to pass *Page 444 an unconstitutional act. On the contrary, we must assume, as the court said in the last case, that the legislature did not overlook the provisions of the Constitution and designed the act to take effect and thus the presumption would be required, if presumption be needed to uphold the statute, that the legislature intended, by the act, to exercise its power over the lands reserved to create a highway out of Moose river. But presumptions need not be indulged in order to hold that this statute is constitutional. We have but to inquire whether the legislature had the power to pass this act. If it had, then it cannot be condemned by the courts as invalid. It is not pretended by the courts below that the legislature had not the power — and it is apparent from the reasoning of the Appellate Division that if the act had contained such recitals as indicated a purpose to devote the lands reserved by the state to the making of a highway of Moose river, that court would have regarded the act as constitutional. The recital of the source of power, however, was not needful. It is sufficient that the power existed to protect the statute from attack on the ground of want of power.
The judgment should be reversed.
All concur with HAIGHT, J., for affirmance, except PARKER, Ch. J., who reads for reversal.
Judgment affirmed, with costs.