The statute which lies at the foundation of these bonds does not, I think, confer judicial functions upon the court which it purports to empower to take such action as will result in the building of a highway at great expense to a town, without notice to any officer of the town, and, therefore, without granting the town the right to be heard. A more arbitrary, undemocratic use of the funds and credit of a town cannot be conceived of, and it would seem to be unfitting that a court should be made the instrument of working out such a scheme. My objection to the statute, however, rests on the broader ground that it offends against the Constitution of the state in that it attempts to confer upon the judiciary functions not judicial but administrative.
Our government consists of three departments, each with distinct and independent powers, designed to act as a check upon those of the other two co-ordinate branches. The legislative department makes the laws, while the executive executes, and the judicial construes and applies them. Each is confined to its own functions and can neither encroach upon *Page 232 nor be made subordinate to those of another without violating the fundamental principle of a republican form of government. (Matter of Davies, 168 N.Y. 89.)
Ever since Chief Justice MARSHALL wrote his famous opinion inMarbury v. Madison the responsibility has been assumed and the duty exercised by the courts of determining when statutes offend against the Constitution, and they have without hesitation declared null and void all such enactments. This power, as at all other times, should be strictly exercised when authority forbidden by the Constitution is conferred upon the courts instead of upon the executive or other administrative officers of the state or upon artificial persons created by it. Such resistance should not be made because the court would be relieved of the work or regards it as beneath its dignity to exercise administrative functions, but on the higher ground that the scheme of the Constitution to confine the court to the exercise of judicial functions should be strictly heeded, not only because the Constitution would have it so, but because it is founded in wisdom, as every experienced judge knows.
The readiness with which the suggestion is accepted from time to time, that the judiciary exercise important administrative functions is due to the confidence generally reposed in the judiciary, which in turn is due in no small measure to the fact that it is prohibited from exercising political functions involving the distribution of patronage which quite frequently results in the overriding of the minority in a way that impresses the people as being arbitrary and unjust. In many instances in this state have statutes conferred upon the judiciary administrative functions. In some the statutes have been executed by the courts without protest. In others such statutory schemes have been resisted at the outset. (People ex rel. Decker v.Waters, 4 Misc. Rep. 1.) That course should have been taken in this case by the Special Term to which the application was made which resulted in the building of a highway, and the issue of the bonds involved in this litigation.
The petition in the matter of that application called the *Page 233 attention of the court to a statute which authorizes a Special Term of the Supreme Court held in any county in the judicial district — even the remotest one from the county in which thelocus in quo might be situated — upon the petition of "any twelve or more freeholders residing in any county of this state" — not necessarily in the town to be affected — which petition "must be duly verified by at least one of said freeholders * * * stating that it is necessary for the public welfare and convenience that a highway in any one town in said county shall be continued along and through another town in the same county," and further, that "upon receipt of said petition the said court shall carefully consider the facts therein alleged, and if it shall be satisfied that the said highway is necessary for the public welfare and convenience * * * then the said court may make an order directing that a notice shall be published in two newspapers of said county for two successive weeks of the time and place when an application for commissioners shall be made, and at said time and place said court may make an order appointing three commissioners for the purposes hereinafter described, all of which commissioners shall be freeholders residing within the said county." The following sections give to the commissioners power to proceed at once to lay out, open and construct the highway with full authority to ascertain and determine the costs, charges and expenses, including the amount of damages awarded to owners or occupants, and commands that such amount shall be paid by the town through which the road is constructed, and authorizes it to issue bonds or obligations to meet the same.
It will be seen, therefore, that upon the petition of twelve freeholders, verified by one of them, the court without notice to or appearance of any official or inhabitant of the town is permitted to decide, not upon a hearing, but upon "the facts alleged therein" (meaning the petition), whether a highway shall be built, and if from that statement of facts it seems to the court likely that it will be a good thing for the town or county, then it shall give notice to everybody in general, but *Page 234 no one in particular, of what? That it is open to a reconsideration of the question of the propriety of the building of the road? Not at all. But instead notice that at a given time and place the court will appoint commissioners. The statute does not provide in terms that the town shall have the right to be heard even then; but if it shall be heard it will be only as to the names of the persons who are to execute the will of the twelve men, who may be non-resident freeholders of the town, as indorsed by the court at Special Term.
Argument cannot be required, I think, in support of the assertion that the action which this statute authorizes the court to take upon the presentation to it of a petition such as is described therein is not judicial, but is administrative.
The Special Term did not, however, take the action I have suggested should have been taken in the first instance. And now the question is pressed for decision at a time when the practical effect of a holding that the statute violates the Constitution will be to enable the town to pay for the road of which it is enjoying in part, at least, the benefit, at the expense of this savings bank, and quite naturally it impresses all who consider it as an unfortunate result.
So, in support of the validity of the statute, argument is made by counsel that during almost all of our constitutional history there have been statutes providing in some way for action by the courts in connection with the laying out of highways. But no statutes have been brought to our attention which, like the one in question, permit a Special Term, upon an ex parte application, to make an order that a highway be builded. And if there were precise precedents for it, and many of them, I should urge that, be there ever so many trespasses against the Constitution, they never ripen into a right to invade it.
As to the other questions discussed in Judge GRAY'S opinion, I concur with him.
I advise an affirmance of the judgment.
O'BRIEN, MARTIN and CULLEN, JJ., concur with GRAY, J.; VANN and WERNER, JJ., concur with PARKER, Ch. J.
Judgment reversed, etc. *Page 235