Sun Printing & Publishing Ass'n v. Mayor

Barrett, J.:

The legislation in question is assailed upon many grounds. The first, and perhaps the most important, is that it violates the constitutional provision that no county, city, town or village shall “ be allowed to incur any indebtedness, except for county, city, town or village purposes.” (Const, art. VIII, § 10.)

The question is thus raised whether a rapid transit railroad, wholly within 'the limits of a city, is a city purpose. That it is a public purpose does not seem to admit of question. But is it a legitimate city purpose % In considering tliis question in connection with an act for the laying out of public places and parks in the twenty-third and twenty-fourth wards of the city of New York and in the adjacent district of Westchester county, the Court of Appeals, Judge Finch speaking for the court, said that “ the purpose must be primarily the benefit, use or convenience of the city as distinguished from that of the public outside of it, although they may be incidentally benefited, and the work be of such a character as to show plainly the predominance of that purpose. And then the thing to be done must be within the ordinary range of municipal action.” {In the Matter of the Application of the Mayor, 99 N. Y. 569, 590.) The learned counsel for the defendants claim that a city use is simply a public use for the special benefit of a city. The plaintiffs, upon the other hand, claim that the further condition indicated by Judge Finch exists, namely, that the “thing to be done must be within the ordinary range of municipal action ; ” and they insist that a railroad is not within that range.

No test is furnished in the case cited for determining the precise scope of municipal action, and none has been suggested to us which is in any way satisfactory. In considering this question it must be premised that cities are not limited to providing for the strict necessities of their citizens. Under legislative authority, they may minister to their comfort, health, pleasure or education. They are not limited to policing the city, to paving its streets, to providing it with light, water, sewers, docks and markets. They may also be required by the sovereign power to furnish their citizens with schools, hospitals, dispensaries, parks, libraries and museums, with zoological, botanical and other gardens. They may thus even gratify our. ears with music of a summer afternoon, or minister to our comfort by providing ns with public baths. Expenditures in all these directions under legislative authority have never been questioned. Where, then, shall we draw the line ? It would be very simple to draw it at those purposes for which precedent in the past can be found, and to exclude all others. This test should be easy of application, but would be essentially vicious and erroneous. Growth and extension are as necessary in the domain of municipal action as in the domain of law. New conditions constantly arise which confront the Legislature with new problems. As the structure of society grows more complex, needs spring up which never existed before. These needs may be so general in their nature as to affect the whole country or the whole State, or they may be local and confined to a .single county or municipality. In any case, it is the duty of that legislative body which has the power and jurisdiction to apply the remedy To hold that the Legislature of this State, acting as the parens pain-ice, may employ for the relief or welfare of the inhabitants of the cities of the State only those methods and agencies which have proved adequate in the past would be a narrow and dangerous interpretation to put upon the fundamental law. No such interpretation has thus far been placed upon the organic law by the courts of this Stated Whenever the question has been considered, it has been universally treated in the broadest spirit.

In the case already cited (Matter of Application of the Mayor) it was contended that the acquisition of parks outside of the boundaries of the city was not within the range of a city purpose. But the court held that it was within the range, for the reason that the lands were “ so near, so convenient of access, so likely to be overtaken and surrounded by the city’s growth, so desirable for the health and recreation of the citizens, and so cheaply to be got in comparison with the consequences of delay, as to indicate a primary and predominant city purpose in a matter itself within the ordinary range of municipal action.” In that case the court referred to the previous purchase, forty miles away from the city, of water rights and lands for dams and reservoirs to supply the citizens with water. That purchase had never heen questioned. “ It is true,” said Judge Pinch, “ that the purpose contemplated was to bring the pure water to the citizens, while here it contemplates leading the citizens to the pure air. Granted that the necessities are not equal, and the modes, of supply differ, and yet that test of a city purpose, which asks if' the property bought and the money spent go outside of the corporate boundaries, must be abandoned.”

In Hequembourg v. City of Dunkirk (49 Hun, 553) the board of water commissioners of the city of Dunkirk was authorized to supply not only the city, but its inhabitants, with electric light. It was held to be a city purpose within the provisions of the Constitution. The rule was laid down that the municipality was not limited to its mere duty to supply the city with light,' but that it might, “ in its discretion, in connection with lighting the streets,” also supply citizens with light in their private dwellings. “ Numerous cases,” said Judge Haight, “ have arisen in which large and extensive water-works had been established for the purpose of supplying cities and villages with pure and wholesome water. In such cases water has been furnished to private consumers at fixed rates, and the power to do this has been sanctioned by the courts as one properly exercised by the municipal government, pure and wholesome water being recognized as necessary to preserve the public health. And in various cities gas-works have been established in which light has been supplied by the municipality to private residences at a fixed charge as well as used for the lighting of the streets.” (Citing Dillon on Mun. Corp. § 27: Wheeler v. Philadelphia, 77 Penn. St. 338 ; Western Saving Fund Society v. City of Philadelphia, 31 id. 175; Lehigh Water Co.'s Appeal, 102 id. 515.) The case cited from 77 Penn. St 338 clearly lays down the rule that the municipal corporation is not limited to acts within the line of its duty to its citizens. “ While it is no part,” said the court, “ of the ordinary and necessary duties of a municipal corporation to supply its citizens with gas and water, it is nevertheless true that it may lawfully do so.” See, also, the broad language and progressive views of Judge Emott with regard to street purposes in People v. Kerr (27 N. Y. 188), referred to with approval by Judge Danforth in Story v. N. Y. El. R. R. Co. (90 id. 160).

Unless, therefore, we are to lay down a hard and fast rule limiting municipal action to what has already been done, and to nothing else, the mere fact that a rapid transit railroad in a city was never before planned nor the plan executed by a municipal corporation ought not to foreclose the question. The true test is that which requires that the work shall be essentially public and for the general good of all the inhabitants of the city. It must not be undertaken merely for gain or for private objects. Gain or loss may incidentally follow, but the purpose must be primarily to satisfy the need or contribute to the convenience of the people of the city at large. Within that sphere .of action, novelty should impose no veto. Should some inventive genius bye and bye create a system for supplying us with ¡Dure air, will the representatives of the people be powerless to utilize it in the great cities of the State, however extreme the want and dangerous the delay ? Will it then be said that pure air is not as important as pure water and clear light ? We apprehend not. The illustration may seem fanciful to-day, but who shall say that peculiarly local conditions may not arise which will make it a vital question hereafter?

The health of the people is dependent in a measure upon decent and convenient transit between their homes and their places of business; not in as great a degree as upon light, air and water, but in no inconsiderable degree. The scheme under consideration is intended to supply not only rapid, but such decent and convenient transit; to ameliorate the present congestion which at certain hours of each day is fraught with danger to thousands, and to furnish business men and women with the means of reaching their homes at such hours without being crushed in body or worn in nerve.

The question cannot be justly solved without considering the problem which was before the Legislature when it was asked to pass these acts. The court must take judicial notice of the city’s history in this regard. We know that relief had been sought through the instrumentality of private adventure, and that capital was not forthcoming. The Legislature had before it this latter crucial circumstance. The need of the people was growing day by day ; the hope of relief in the ordinary manner was steadily receding. Shall it be said that, in such emergency, the people were helpless except through an amendment to the Constitution? That, in such a crisis, and under such exceptional circumstances, the Legislature could not adjudge, upon all facts before it, a new and imminent, though hitherto unknown, city purpose ? It is not the province of the court to deny the legislative power to thus adjudge. The present enterprise was demanded of the city by the surrounding conditions. It was a public enterprise. It was not for travelers nor for public travel in the ordinary sense. It was for daily and hourly use in the business and home life of our people. It was entirely within the boundaries of the city. It was primarily for the benefit of its long-suffering inhabitants alone. It was to be open to all these inhabitants at a toll to be fixed by public officials. It was not tainted with even the suggestion of a private character, nor with the purpose of gain. The sole object was public and general locomotion in the locality — locomotion for which there was a crying need — safe, rapid, healthful locomotion; locomotion worthy, in fine, of a civilized metropolis and of a well-governed municipality.

The case at this point is clearly within the principle of People ex rel. Murphy v. Kelly (76 N. Y. 475). It was there held that moneys used in acquiring the New York and Brooklyn bridge, property would be expended for a city purpose. No apparently valid distinction exists between transportation over a bridge from one county into another and transportation within the city limits by a rapid transit railway. If one comes within the “ ordinary range of municipal action ” so surely does the other. Not only that, but one of the chief uses of the bridge was and is for railway purposes. Section 7 of chapter’ 300 of the Laws of 1875 provides as follows : “ The said trustees * * * may operate and authorize to be operated a railroad or railroads oyer said bridge and fix the fare to be paid by any passenger on any railroad operated by them.” It would be a strange result if a city might build a railway over a bridge to another city and might not build a railway in its own streets, and wholly within its own limits. It is plain that this bridge case repudiates any distinction between bridges and railways, due to city ownership of the former in the past. If it had been intended to sanction such a distraction, certainly the fact would have been pointed out that there had been such ownership of bridges, and the objectionable railway feature would have been adverted to, and held to be merged in, and subordinated to, the lawful bridge project. But the opinion is quite silent on these points. There are, however, many expressions in the opinion which favor our present view. “ It is impossible,” said Judge Earl, “to define in a general way with entire accuracy what a city purpose is within the meaning of the constitution. Each case must largely .depend upon its own facts, and the meaning of these words must be evolved by a process of exclusion and inclusion in judicial construction. It would not be a city purpose for the city of New York to build a railroad from that city to Philadelphia, or to improve the navigation of the Hudson river generally between that city and Albany, although incidental benefits might flow to the city.” That illustration marks the test which was in the learned judge’s mind. Would he have thus spoken of a railroad from one point to another within the city limits ? Such a railroad, strictly for the needs of the locality, would rather have come within his other observation : “ Such improvements are for the common and general benefit of all the citizens, and have always been regarded as within the scope of municipal government.”

The past history of the State indicates that the special evils at which the constitutional provision was aimed were improvident investments in the securities of railroad corporations of the funds of the cities, towns and villages along the route. Of course, these railroads were not built for the use of any of the municipalities in question, and, in general, benefited no one of them more than another. The investment of their funds in this manner was simply a speculation, which was generally unprofitable. It is a sound policy to check municipalities in embarking their capital in business enterprises for the mere hope of gain. It is not proper that a city should engage in the railroad business, or, indeed, in any other business, merely as a private adventure. Its actuating motive in every work it undertakes should simply be to advance the interests of its citizens by remedying some existing evil. That was the sole motive in the legislation under review. The rapid transit board is not to consider whether a railway could be made a paying investment, but whether (§ 4) it would be “ for the interest of the public and of the city in which it (the board) is appointed.” When we recall the fact already adverted to, that the evil in question was one which private capital was disposed to leave unremedied, the obnoxious element of paternalism, or of competition by a city with its citizens in the business walks of life, entirely disajrpears, and we find, not as contended, the entering wedge of socialism, hut simply novel municipal work undertaken under the stress of dire necessity.

Finally, it should be said, that if any doubt exists as to whether or not this is a city purpose, it must be resolved in favor of the legislative action. In this, as in all questions involving the constitutionality of a statute, every intendment is in favor of validity. The Legislature has, in effect, declared the purpose to be a municipal one, and its judgment must govern unless clearly erroneous. (People ex rel. Murphy v. Kelly, supra, 489; Matter of Application of the Mayor, supra, 591.) The language of Judge Éarl, in People ex rel. Murphy v. Kelly, is again most instructive, and we think conclusive: “ The Legislature,” he says, “ when legislating, in view of this constitutional limitation, must determine in the first instance what is a municipal purpose. Its decision is not, however, final. When its act is challenged, as in conflict with this constitutional limitation, the courts must determine whether debt is authorized to be incurred for a purpose not municipal. But as the dividing line between what is a municipal purpose and what is not is in many eases shadowy and uncertain, great weight should be given by the courts to the legislative determination, and its action should not be annulled unless the purpose appears clearly to be one not authorized. As said by Judge Folger, in Weismer v. Village of Douglas (64 N. Y. 91), ‘ If the purpose designed by the Legislature lies so near the border line that it may be doubtful on which side of it it is domiciled, the courts may not set their judgment against that of the law maker’s.’ ”

These considerations seem to us to be decisive of this particular question. It is proper, however, that we should briefly notice another view of it which the appellants, in their point with regard to local self-government, impliedly present, namely, that a city purpose pre-supposes jmmediate municipal control, and that there can be no city purpose without actual and direct corporate possession, control and use. This is the first time it has ever, to our knowledge, been suggested that the city purpose referred to in the Oonstitution relates to the method of doing a thing rather than to the thing itself. We suppose that the real question is whether municipal construction of a rapid transit railway within the city limits for the benefit mainly of the people of the city is itself, that is, inherently, a city purpose. The machinery provided for effecting this purpose surely throws no light upon the main question. The machinery is not the purpose. Whether the Legislature has provided constitutional machinery is another question. It at least attempts to create corporate agencies when “ in each city ” having a certain population it directly appoints a board of rapid transit commissioners “ in and for such city ” (§ 1). And it has created these agencies effectually if such direct appointment was constitutional. That would seem to close the discussion as to direct municipal possession, control and use. It is quite immaterial whether these municipal agents are appointed in one way or in another, so long as they are constitutionally appointed. If constitutionally appointed, they are as much municipal agents as though they were appointed by the- mayor. We do not mean municipal agents for the performance of corporate duties; that is, municipal agents for whose misfeasance or nonfeasance there would be a corporate liability. We mean municipal agents to effect the public city purpose decreed by the sovereign power.

Whether public officials are local or State officials depends upon the functions which they are required to perform, not upon the source of their appointment. These rapid transit commissioners are clearly local officers in each city embraced within the statute; that is, local officers lawfully appointed by the Legislature for each locality.' Their character does not depend upon the form or general structure of the act. Local officers may be appointed in a general act, as well as iú a local act. The act in question appoints a local board for each city embraced within its classification, varied in its membership by variations as to certain local officials. The functions of these boards are strictly local. Their primary function is to consider and' determine whether it is for the interest of the public, and of the city in which each is appointed, that a rapid transit railway should be established therein. (§ 4.) They act, in fact, for the particular city throughout. They acquire property for it. They sue in its name and on its behalf. They are even spoken of in the act as the city’s board of rapid transit commissioners. (§ 34.) It is provided (§ 60) that all property acquired under the provisions of the act “ shall be, and shall be deemed to have been, acquired for public uses and purposes, and for the purpose of affording increased facilities for rapid transit between points within the city acquiring such property.” If the board shall at any time cease to exist, the act declares that the Legislature may provide what public officer or officers of the city shall exercise its power under any existing contract, and in default of such provision that such powers and duties shall be deemed to be vested in the mayor of the city.

The language of Judge Earl in the case of The Mayor v. Tenth National Bank (111 N. Y. 454) is quite applicable here. Speaking of the commissioners of the New York county court house that learned judge said: “ The commissioners appointed to build it were county commissioners, engaged in disbursing county moneys and discharging functions devolved upon them as county officials or agents. It matters not that they were appointed by the mayor of the city. It was for the legislature to determine how they should be appointed. It could have named them i/n some act, or could have devolved their appointment upon the board of supervisors, or the sheriff, or some other local officer. Their character as county commissioners depended not upon the source of their appointment, but upon the nature of their duties and powers, and of the work they were required to perform.” For the same reason it was held in People ex rel. Ryan v. Civil Service Boards that employees of the aqueduct commissioners were in the. civil service of the city (41 Hun, 287; affd., on opinion below in 103 N. Y. 657). The same doctrine was reaffirmed in substance in People ex rel. Haughton v. Andrews (104 N. Y. 570). It was there held that while excise commissioners may be in one sense, and that a technical one, State officers, they came within the purview of an act which declared that all appointments to office in the city of New York should be made by the mayor without confirmation. This was put upon the ground that their duties, although affecting the general public, were to be performed within the same limits as those which confine the municipality. Thus this rapid transit board was an agency provided for the city by the Legislature for a public purpose, especially affecting the locality, that is, for a city purpose ; and it was so provided in the exercise of the Legislature’s sovereign powers. “ Municipal corporations,” said Judge Earl, in The Mayor v. Tenth National Bank (supra), “ are creatures of the State, and exist and act in subordination to its sovereign lower.” “ Municipal corporations,” said Judge Andrews, in Brown v. The Mayor (63 N. Y. 244), “ are agencies of the State through which the sovereign power acts in matters of local concern.” It would seem to be quite clear, therefore, that the direct appointment of these commissioners by the Legislature has no possible significance in the solution of the question whether this is a legitimate city purpose, or rather, whether the Legislature has constitutionally adjudged it to be a legitimate city purpose.

Still less is this question embarrassed by the terms of the act with regard to the construction and operation of the road. It is quite immaterial, so far as the question of city purpose is concerned, whether the road shall be built in one way or in another, or operated in way or in another. The material fact is, that the road (§ 63) “ shall be and remain the absolute property of the city so constructing it or them, and shall be and be deemed to be apart of the public streets cmd highways of said city, to be used and enjoyed by the qiublic upon the payment of such lares and tolls, and subject tti such reasonable rules and regulations as may be imposed and provided for by the board of rapid transit commissioners in said city.” (Laws of 1891, chap. 4, as amended by Laws of 1894, chap. 752, § 9 [adding § 63].)

How this latter provision shall be effectuated, whether by a long lease or a short lease, by a lease with this covenant or that covenant, by a lease with or without provision for renewal, by an individual lessee or a corporate lessee, or by no lease at all, but simply by direct municipal service, are mere matters of detail. The Legislature could lawfully provide how the road should be constructed and operated, and upon what terms and conditions, and it could lawfully confer authority upon the agents provided for the city to make these terms and conditions. Its directions on that head surely did not make or unmake the essential factor of a city purpose. The appellants’ view of this phase of the question necessarily concedes that it would be a city purpose ■— apart from other objections — if the road, when constructed, were to be operated directly by the city or its immediate agénte; that is, by a horde of new officials. The Legislature in its wisdom — and who will venture to assert that it was not wisdom?—has set its face against this mode of executing the adjudged purpose. It has sought to grant relief, and yet to keep the road out of the dark. domain of local political activity. To accomplish this, it has placed the contractor as a breakwater between the city and an evil far greater than that which it was implored to remedy. Has the adjudged purpose ceased to be a city purpose for that reason ? If not — and surely no one will say it has — is not the debate simply reduced to a doubt as to whether the commissioners will do their full duty by the city which they lawfully represent ?

And how can it be justly maintained that the principle of local self-government is infringed, when the people themselves, the qualified electors of the city, with full knowledge of what this act contemplates, are afforded an opportunity of deciding the main question of whether there shall be municipal construction through the agency of these very commissioners % And when, in addition to this prerequisite, it is provided that not a step shall be taken in the direction of such construction without the approval by the city’s local authorities of the “ plans and conclusions ” adopted by the board.

In no aspect of this question does it seem to us that these enactments can be judicially condemned as a violation of the constitotional provision under consideration.

The next question presented is whether there has been a violation of the other portion of section 10 of article 8 of the Constitution, providing that “ no county, city, town or village shall hereafter give any money or property, or loan its money or credit to or in aid of any individual, association or corporation.”

Section 34 of the act as amended authorizes the rapid transit board to “ enter into a contract with any person, firm or corporation, which in the opinion of said board shall be best qualified to fulfill and carry out said contract, for the construction of such road or roads, upon the routes, and in accordance with the plans and specifications so adopted for such sum or sums of money, to be raised and paid out of the treasury of said city, as hereinafter provided, and on such terms and conditions, not inconsistent with the aforesaid plans and specifications, as said board shall determine to be best for the public interests. * * * Such contract shall also provide that the person, firm or corporation so contracting to construct said road or roads shall at his or its own cost and expense, equip, maintain and operate said road or roads for a term of years to be specified in said contract not less than thirty-five, nor more than fifty years, and upon such terms and conditions as to the rates of fare to be charged and the character of service to be furnished and otherwise as said board shall deem to be best suited to the public interests, and subject to such public supervision and to such conditions, regulations and requirements as may be determined upon by said board. * * * Said contract may also provide for a renewal or renewals of the lease * * * upon such terms and conditions as to said board may seem just and proper, and may also contain provisions for the valuation of the whole or a part of the property * * * and for the purchase of the same by the city at such valuation or a percentage of the same should said lease not be so renewed at any time.”

“ Such contract shall further provide that the person, firm or corporation so contracting to construct, maintain and operate said road shall annually pay into the treasury of said city, as rental for the use of said road, a sum which shall not, except as hereinafter provided, be less than the annual interest upon the bonds to be issued by said city for the construction of said road as hereinafter provided for, and in addition to said interest a further sum which shall be equal to a percentage of not less than one per centum upon the whole amount of said bonds — provided that in estimating such annual interest and additional percentage there shall be deducted from the amount of the said bonds the amount thereof issued to pay for rights, terms, easements, privileges or property other than lands acquired in fee. Such rental and the term for the operation of said road shall begin as to said road or any section thereof when the same shall be declared by the board of rapid transit railroad commissioners to be completed and ready for operation. For the purpose of estimating such one per centum per annum upon the ascertainment of the amount of such rental, there shall be included such portion of the said bonds as shall have been issued to pay interest on bonds theretofore issued under the provisions of this act, except bonds issued to pay for rights, terms, easements, privileges, or property other than lands acquired in fee.” Subsequent portions of the section direct that the contractor shall give a bond to the city in such amount as the board shall fix, conditioned for the prompt payment of the rent and the faithful performance of the other covenants and conditions of the contract; also for the deposit with the chief financial officer of the city, as further security, of not less than $1,000,000 in money or approved securities, to be returned, with interest or accumulations, upon the completion of the road. The city is also given a first lien upon the rolling stock, and the right to take possession of the road upon the contractor’s failure to pay rent, or upon breach of any of his agreements, and either itself operate the same, or re-let the contract — the original contractor being entitled to the balance after payment of the rent and all other charges and expenses, and being liable for any deficiency. A right of action is also given to the city in case of breach of the contract, to forfeit the contractor’s rights thereunder and recover damages. Section 35 exempts the contractor from taxation in respect to his interest under the contract, and to the rolling stock and equipment of the road. Section 30 directs advertisement for proposals. Section 3'T directs the issuance of bonds to pay for construction, not to exceed $50,000,000, such bonds to be exempt from taxation.

The argument against the plan outlined above would appear to be about as follows : The city is to pay for the building of the road, and is then at once to lease it to the builder for a long period. The right to run the road and receive the income is the only valuable attribute of ownership. The length of the lease is such as practically to confer title in fee. The rent is merely nominal. Consequently, the city builds the road, and substantially presents it to the contractor. And so it “ gives ” its “ property ” to the contractor, in violation of the Constitution.

This is the plaintiff’s first position. There are a number of unjustifiable assumptions here, of which the chief one is that the city can receive no substantial return for its investment. The act does not provide that the contractor shall be entitled to the lease at a rent of the annual interest upon the bonds and the further sum of one per centum upon the whole amount thereof. That is the minimum— a check upon the action of the commissioners. They are. at perfect liberty to obtain as much more as may be obtainable. In this particular, as in many others, they are vested with a wide discretion. The plaintiff’s argument rests necessarily upon the theory that the board will not faithfully discharge its duties to the city, but will act entirely in the interest of the contractor •—■ an inference which is purely gratuitous. That a city may, in general, lease its property, such as wharves or market stalls, and for a long period, cannot be doubted. We can discern no difference in principle between leasing structures already in existence and contracting with some one to build such structures, paying him for his work, and then permitting him to have the use of them for an annual rental. It can make no difference whether A. is the builder and B. the lessee, or whether A. fills both positions. In fact, by concentration upon a single individual or corporation as contractor first and lessee after-wards, better terms could probably be obtained for the city in both directions. The doubt must arise at that part of the proceedings where the lease is to be made. It is then, if at all, that there is a substantial gift of the city property. But it is quite impossible to spell such a gift out of the legislation in question. There can by no possibility be more than a disadvantageous bargain. That this is not enough was directly decided in Tocci v. The Mayor (73 Hun, 46). This case upheld the constitutionality of chapter 339 of the Laws of 1892, an act imposing upon the city of New York the payment of one-half the expense of elevating certain railroad tracks in the city. Van Brunt, P. J., said (p. 52): “Even though the claim that the city contributes to the private structure of the railroad were true, if in consideration of such contribution the railroad surrenders rights which it had to public streets and avenues, and the Legislature chose to permit the city to buy out such rights by contributing to the expenses incurred because of such surrender, we see no possible constitutional objection thereto. It is merely paying a consideration for substantial advantages' supposed to be gained. And we have nothing to do with the question whether the Legislature directed the city to pay a high or a low price for the privileges which it acquired, or make an improvident bargain thereof, if their value is of such a character that an absolute gift cannot be inferred.” We think the plaintiff’s primary proposition on this head is wholly without merit.

Its second position is entitled to more serious consideration. Does the act contemplate a loan of the city’s money or credit to or in aid of any' individual, association or corporation ? The transaction authorized by the law clearly cannot effect a partnership between the city and the contractor. The relation of lessor and lessee does not create a joint interest. The city remains throughout, in the eye of the law, the absolute owner. That the relation of lessor and lessee, which is in terms established upon the face of the contract, cannot, by judicial inference, be turned into that of partners, was directly decided in Walker v. Cincinnati (21 Ohio St. 14), where similar legislation was upheld as against a similar constitutional prohibition. In Taylor v. Ross County (23 Ohio St. 77) the Walker case was distinguished, but its doctrine was fully approved. The court said, through White, Ch. J., speaking of the facts in the Walker case : “ The proprietary interest in the road when completed, is as fully in the municipality as that of any other of its public works. It is the road ‘ owned ’ by the municipality that is authorized to be leased. The public use for which the road was built is to be preserved, and the power of leasing the right to use and operate it is designed only as a mode of making such use available to the public.” H ow then can the city be said to lend its money or credit to, or in aid of, the contractor ? Only by our determining that the Legislature meant to do so, and did not mean what, upon the face of the act, it said. The argument upon that head is that the legal title of the city will be but technical, and that the beneficial rights attaching to ownership pass to the contractor ; that the risk throughout is the city’s, the profit the contractor’s. Yet here we have a direct contract to build the road for a sum to be agreed upon between the contractor and a carefully-selected board, and, further, we have a direct contract to lease the road when built for a sum to be likewise agreed upon between the same parties. Assuming these to be honest contracts, meaning what they profess, the city does not lend its money or credit to the contractor. It surely does not do so when it pays him the contract price of his work. It simply pays its own debt to him. When it issues bonds to raise the money to pay that debt it does not lend its credit to the contractor. It utilizes its own credit for its own purposes, namely, to enable it to pay its own obligations. Shall we then go behind the legislative declaration, and inquire whether its at least superficially innocent language was meant to cloak a design to violate the Constitution ? That would be to treat a legislative enactment as we would the acts of individuals in a suit to set aside those acts as fraudulent. The courts cannot thus probe the legislative conscience, nor can they try its intent and motives as they would questions of alleged fraudulent intent in an ordinary action. Still less can they draw unconstitutional inferences from unambiguous constitutional expressions. It was said in The People v. Draper (15 N. Y. 532, 545) that “ the courts cannot impute to the legislature any other than public motives for their acts. If a given act of legislation is not forbidden by express words, or by necessary implication, the judges cannot listen to a suggestion that the professed motives for passing it are not the real ones. If the act can be upheld upon any views of necessity or public expediency, which the legislature may have entertained, the law cannot be challenged in the courts.” And again (p. 555), “ I will not say that a law may not be so palpably evasive of constitutional provisions, that it would be the duty of the courts to pronounce the law void; not, however, because the legislature intended to evade, while they violated, its provisions, but because they had not succeeded in the evaswe effort. We are not made judges of the motives of the legislature, and the court will not usurp the inquisitorial office of inquiring into the bona fides of that body in discharging its duties.” The latter language was cited with approval in The Matter of N. Y. Elevated R. R. Co. (70 N. Y. 327, 351), where Judge Eabl said that “it is not to be presumed or inferred that the Legislature intended to violate or evade the constitutional restraints.” The question there was, whether the act under consideration was local or general. The claim was made that it was local, because there was but one elevated railway in actual operation in the State at the time of the passage of the act. “ How are wo to know,” said Judge Eabl, “that there was but one in operation at the time of the passage of the act ? Can a court take proof for the purpose of showing a statute valid and regular upon its face to be unconstitutional ? * * * We do not know, and we cannot assume, that the legislature knew that there was but one elevated steam railway in actual operation in this State at the time of the passage of the act.” The learned judge quoted with approval from the opinion of Allen, J., in People v. Albertson (55 N. Y. 50), that “no motive, purpose or intent can be imputed to the Legislature in the enactment of a law other them such as a/re apparent upon the face, and to be gathered from the terms, of the law itself.” Summing up the result of this reasoning, the court concluded as follows : “ It may be that the construction which we have thus given to this act, and particularly to section thirty-six, may leave the way open to great abuses of legislative power, illustrations of which were given in the learned arguments before us. There may be ways for a Legislature to circumvent a constitutional provision without violating it. History shows by many examples how the spirit of a Constitution may be disregarded and yet its letter observed. But there is a vital difference between the abuse of legislative power and its exercise in palpable violation of the Constitution. For the former, the remedy is with the people alone in the choice of faithful representatives who will respect their will; for the latter, alone, the courts, clothed with power, always to be exercised with caution, can give a remedy.”

From these authorities we may safely deduce the just rule that, where legislation is, upon its face, susceptible of two inferences, one pointing to validity and the other to possible evasion, the courts, giving the legislative body credit for good faith, are bound to draw the former conclusion. The conclusion of invalidity can be arrived at only when the legislative act, in terms, violates some constitutional provision, or when, upon its face, though not in express language, it is so palpably evasive of such constitutional provision that but one inference — that of intentional violation — can be drawn therefrom.

The act under consideration does not come within this latter doctrine. Indeed, much of the argument against its constitutionality is simply criticism of the policy of the act, and an attempt to show that, under it, the contractor will secure an undue advantage over the city. Even if this criticism were valid, it would not establish a violation of the constitutional provision in question; but much of the criticism is unjust. Wide discretion is vested in a board of the highest standing and character under circumstances necessitating the grant of liberal powers to some public agency. It is not a fain inference that the limitations placed upon the hoard’s contracting power are any index of the terms which will actually be made. The whole matter is within the discretion of the board, subject only to the limitations imposed upon it by the Legislature. It will be the duty of the board to secure fair terms from the contractor. It need not contract at all until it secures such fair terms. Whether it secures them or not, it is not authorized, either directly or indirectly, to lend the city’s money or credit to, or in aid of, the contractor; and it cannot be justly asserted that any contract which it makes under the act must have such effect. It follows that the act is not in conflict with the constitutional provision in question.

The next question is whether the acts violate section 18 of article 3, providing that the Legislature “ shall not pass a private or local bill * * * granting to any corporation, association or individual the right to lay down railroad tracks.”

Section 1 of the act (Chap. 4 of 1891, as amended by chap. 752 of 1894) provides that “ In each city having over one million of inhabitants, according to the last preceding national or state census, there shall be a board of rapid transit railroad commissioners.” The claim is that New York city is the only city to which this section could possibly apply, and that consequently the act is local. Whatever might be our views of this question, were it now an original subject of debate, we are concluded by repeated adjudications of the court of last resort. We need only refer to the unbroken succession of authorities upon this point. (Matter of N. Y. El. R. R. Co., 70 N. Y. 327; Matter of Church, 92 id. 1; People ex rel. Electric Lines Co. v. Squire, 107 id. 593 ; Ferguson v. Ross, 126 id. 459.) These cases distinctly hold that the act is general where it relates to particular persons or things as a class, and that it matters not that these persons or things are limited or restricted. So long as the terms of the law itself are not thus narrowed, its general characteristic is not thereby affected. It may be that a distinction should be drawn between cases where the local characteristic can only be ascertained by evi-. dence dehors the act, and those where that characteristic is apparent from facts of which the courts take judicial cognizance. However, we find nothing in the authorities to warrant this distinction. They proceed upon the broad principle which we have stated. Whether this distinction should be made in the present instance, we cannot, therefore, say without seeming to question these authorities. That duty must properly he left to the court from which the broad and general rule has emanated.

It is contended, too, that the rule laid down in these authorities has been changed by the classification of cities provided for in section 2 of article 12 of the new Constitution. We think this classification has no relation to general, private and local laws, as these terms are used in other provisions of the Constitution. This classification was simply for the purpose of regulating the passage of special city laws, and of giving the local authorities a proper opportunity of asserting themselves with regard thereto. The division in this section of laws relating to cities, into general city laws and special city laws, was certainly not intended to afiect the well-established meaning of general, private and local laws under existing adjudications.

But, even if the act were held to be local, we should have to go further and see whether it grants to any such corporation, as the Constitution refers to in this connection, the right to lay down railroad tracks. We do not think that this provision of the Constitution was intended to cover municipal or other governmental corporations. The corporations contemplated by the section under consideration were those referred to in the 3d section of the 8th article of the Constitution — corporations which were there construed to include all associations and joint-stock companies having any of the powers or privileges of corporations not possessed by individuals or partnerships; in other words, corporations organized by individuals, in one sense, it may be, for the benefit of the public, but directly for the benefit of their promoters and stockholders. These corporations are the same as those referred to in section 10 of article 8 of the Constitution. This section, as we have seen, prohibits any city, that is, any municipal corporation, from lending its money or credit to any corporation. The distinction between cities and ordinary corporations is thus clearly drawn. The intention plainly was to prohibit the Legislature from passing any private or local act granting to any such ordinary corporation, whether private or quasi public, the right to lay down railroad tracks. There was no such intention with regard to counties, cities, towns or villages, so far as these governmental agencies might operate within legitimate local purposes for the benefit of the inhabitants.

The next question is whether the act conflicts with section 6 of article 1 of the Constitution, which provides that private property shall not be taken for public use without just compensation. This question is incidental, and it is at least doubtful whether it goes to the root of the general authority conferred by the act. It may, however, be briefly considered.

Section 40 directs the rapid transit board to prepare maps or plans of the lands and property necessary to be acquired, or to which there may be appurtenant rights, terms, easements, franchises or privileges necessary to be acquired for the construction of the road, specifying upon the maps, or upon accompanying memoranda, the exact estate or interest requisite. One set of the maps and memoranda is directed to be filed with the department of public works, or other chief executive department having charge of the streets, and one with the register or county clerk. Provision is then made for the appointment of commissioners of appraisal, and they are required to take their oath and file it in the office of the clerk of the county. Upon the filing of this oath it is provided (§ 4/1) that the city shall at once become seized of all the lands, estates and interests described in the maps and memoranda and have the right to enter into possession of the same; but that it shall become forthwith liable to the owner of the same “ for the true and respective values thereof, together with interest thereon from the time of filing the said oath,” etc. It is, however, provided that “ no action shall be brought to recover the amount of such value or interest unless within eighteen months after the filing of such oath, a report shall not have been duly made by commissioners of appraisal as herein provided, or such report shall not have been confirmed by the Supreme Court as herein provided, so that the said city shall be liable to forthwith pay the amount by such report ascertained to be due for such value or interest.” Sections 48 to 52 prescribe for the taking of testimony by the commissioners and the confirmation of their report by the Special Term of the Supreme Court. Section 53 makes it obligatory upon the city to pay any award within four calendar months from the time of the confirmation of the report, with interest from the date of the filing of the oath. In default of such payment, the owners are permitted to bring an action to recover the amount, “ in which it shall be sufficient to declare generally for so much money due to the plaintiff or plaintiffs therein by virtue of this act for property taken or extinguished for the purposes herein mentioned, and the report of said commissioners, with proof of the right and title of the plaintiff or plaintiffs to the sum or sums demanded, shall be conclusive evidence in such suit or action.”

These provisions constitute a' certain, definite and adequate source and manner of payment. They are substantially like those which were found to be sufficient in The Matter of the Application of the Mayor (supra). It is well settled that it is not necessary that the act shall provide for payment in advance of the taking, so long as the provision for compensation is certain and adequate. (Sweet v. Rechel, 159 U. S. 380 ; Cherokee Nation v. Kansas Railway, 135 id. 641; Rider v. Stryker, 63 N. Y. 137; Matter of U. S., 96 id. 227.) Undoubtedly the provision should also guarantee prompt payment, that is, payment without any unreasonable or unnecessary delay. We think that, considering the nature of the jn’esent undertaking and the amount of property likely to be taken, this condition was fairly fulfilled by the provisions of the act.

The remaining 'points may be briefly disposed of. The office of rapid transit commissioner was not in existence at the time when the Constitution, which is said to have been violated by the manner in which the present rapid transit commissioners were appointed, went into effect. It has been repeatedly held that the provisions of this Constitution, with regard to the election or appointment of city, town or village officers, related solely to offices which were in existence at the time of its adoption. (People ex rel. Kingsland v. Palmer, 52 N. Y 83 ; People v. Draper, 15 id. 532; People v. Pinckney, 32 id. 377.) _ As to officers whose offices might thereafter be created by law, the ¡movision was that they should be elected by the people, or appointed as the Legislature might direct. As to such new offices, it has been held that the legislative power is not in any wise restricted; that it embraced all officers of every.description, both local and general, and that the Legislature was authorized to confer the power of appointment even upon such bodies as the Chamber of Commerce, and upon such persons as the presidents of marine insurance companies. (Sturgis v. Spofford, 45 N. Y. 446.) In this case Church, Ch. J., said : “ It is insisted that the power of appointment can only be conferred upon some body or officer representing or responsible to the people. The language of the Constitution does not justify this position. The power is not restricted, * * * The omission, of any direction as to the appointment of such officers is significant of the intention of the framers and the people to leave the unrestricted power in the Legislature.”

This unrestricted power carried with it, as an incident, the power to appoint directly, as well as through some other agency — a power which has been repeatedly exercised without question, notably in The Matter of the Central Park (Laws 1858, chap. 771) and in the case of the aqueduct commissioners, where vast interests were involved, and which in Astor v. The Mayor (62 N. Y. 567) was even extended to cover certain acts, the power to perform which was, at the time of the adoption of the Constitution, vested in local officers elected by the people.

It is also claimed that the Legislature had no authority to provide a referendum to the people of the city. It has, however, been abundantly settled that there is no constitutional objection to an enactment referring to a municipality or other civil division of the State the question whether it desires the passage of a statute particularly affecting it. (Bank v. Rome, 18 N. Y. 38 ; Starin v. Genoa, 23 id. 439; Bank of Chenango v. Brown, 26 id. 467; Clarke v. City of Rochester, 28 id. 605.)

Lastly, there is nothing in the act which can be said to allow the city or the commissioners to enter into a contract in violation of the provisions-of section 10 of article 8 of the Constitution, to the effect that “ no county or city shall be allowed to become indebted for any purpose or in any manner to an amount which, including existing indebtedness, shall exceed ten per centum of the assessed valuation of the real estate of such county or city subject to taxation as it appeared by the assessment-rolls of said county or city on the last assessment for State or county taxes prior to the incurring of such indebtedness.” It is to be presumed that public officers will do their duty; and one of their first duties is to respect and obey the Constitution. The act is not invalid, because under it the commissioners might possibly make a contract which would transgress the provision in question; in other words, make an illegal contract in disregard of their duty. The act itself contemplates nothing of the kind. Nor does it appear as matter of fact that such a contract will necessarily follow the due execution of the act.

We have thus considered all the questions presented by the present record, and. our conclusion is that the acts in question are not in conflict with any provision of the Constitution.

The judgment appealed from was, therefore, right, and should be affirmed, with costs.

Yaw Bbtjnt, P. J., and Williams, J., concur.