I concur with Judge Ingraham in the conclusion which he has reached, and in the reasons which he has given, but in view of the importance of the case I think it is not improper to state, as shortly as may be, some reasons additional to those advanced by him, why, in my judgment, the Rapid Transit Act is unconstitutional, so far as it authorizes or requires the city to expend its money for the construction of a railroad.
In examining the question I shall not be unmindful of the rules which must govern courts in deciding upon the constitutionality of an act of the Legislature. They are laid down by Judge Allen in the case of The People ex rel. Bolton v. Albertson (55 N. Y. 50), and are so fully stated by Judge Ingraham in his opinion that they need not be recapitulated here.
The section of the Constitution, so far as it is material to the consideration of this case, provides 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. * * * Nor shall any such county, city, town or village be allowed to incur any indebtedness, except for county, city, town or village purposes.” The question as presented by this record, upon this branch of the case, is whether the building of a railroad within the limits of any city of the State by the government of that city is a city purpose, so that it may be permitted to be done within the prohibition of this section of the Constitution.
In examining this act it must not be forgotten that this is not a special city act, passed solely to affect the city of New York, but that it is a general law. Such is its necessary construction within the rules laid down by the Court of Appeals (Matter of Church, 92 N. Y. 1; People v. Squire, 107 id. 593), and such is the construction given to it by the majority of the court. That this construction is correct, and that the act is intended to be a general act, neces*276sarily appears from the manner of its amendment in 1895. At that time the Constitution provided that no special city law should become operative until it had been approved by the mayor of the city to which it applied, or by the mayors of the several cities to which it applied, if such cities were not all in one of the classes arranged by the Constitution. (Const, art. 12, § 2.) As this act applied to only a part of the cities of the first class, and not to all the cities of any class specified in the Constitution, therefore, if it was a special city act and not a general law, the act of 1895 amending it could not become operative until it had been accepted by the mayors of each of the cities to which it applied. The act was amended in 1895 in very important matters. In regard to these matters it is claimed by the board of rapid transit commissioners, and it is conceded on all hands, that the amendments were valid and operative, which could not be the case if it was a special law, unless the amendments had been accepted by the mayor of the city of New York. This was not done in that year. We are justified, therefore, in saying, as is said by the majority of the court, that this act is a general act, and that it is applicable not only to the city of New York, but to every other city in the State, just as soon as that city shall come within its description. It is quite true that no other city is now within the description of those mentioned in the title to the act, but it is equally true that, by the next census, at least one other city will be within its description, and it is more than probable that, before a second census shall take place, a third city will be competent to come under its provisions. The act, therefore, cannot be construed as though it were applicable simply to the city of New York, but it must be examined in view of its applicability to any city which may, at any time, become subject to its provisions.
As we have seen, the act substantially gives to the city the power, at -the will of its inhabitants, to incur an indebtedness for building a railway, which, when built, shall not be operated by the officials of the city for the benefit of the city, but shall be operated by a corporation for its own profit, upon payment of a rent, which corporation shall have the entire and exclusive control of it free from the right of interference on . the part of the city, or of any of its officials, just as long as the rent shall be paid.
While this is the necessary effect of the act, yet it is proper to *277say that no stress will be laid in this opinion upon the fact that the road, when built, shall be operated by a corporation which shall have exclusive control of it, but the discussion will proceed entirely upon the theory that that of itself is immaterial; and .the question argued will be whether it is a city purpose for a city to construct a railroad within its own limits, no matter whether that railroad is to be operated by the city officials or by some corporation for its own profit and advantage.
As might be expected, there is neither in this State nor anywhere else, any decision or authority on that subject. The case of The People ex rel. Murphy v. Kelly (76 N. Y. 475) has been cited as an authority upon the question presented, but a careful consideration of that case shows that no such question was, or could have been, presented to the court. In that case, by the Laws of 1867 and 1869, a corporation was organized to build the Brooklyn bridge, and the cities of New York and Brooklyn were authorized to become the owners of the stock of that corporation. In 1874, the bridge having been partly completed and the corporation being unable to finish it, the Legislature empowered the cities of New York and Brooklyn to become the owners of all the stock and to complete the bridge and abolish the corporation which had existed before then. This act prescribed a limit of the cost of the bridge. After the' two cities had assumed the construction of the bridge, an application was made by the board of bridge trustees for a mandamus to compel the comptroller of the city of New York to pay over to the trustees pursuant to the statute, to apply upon the expenses of construction, a certain amount of money, which was -within the amount to be paid by that city. This was rdsisted by the comptroller, upon the ground that it appeared that the bridge could not be completed within the limit of the amount of money which the act had authorized to be expended for that purpose. The question presented to the court was, in the first place, whether the limit of cost of the bridge, as prescribed in the act, was a restraint upon the powers of the board of bridge trustees so that they would not be permitted to go on with the construction of the 'bridge when it became apparent that it could not be completed for the sum allowed. After the passage of the act of 1874 the constitutional provision which has been quoted above had taken effect, and the *278further question was presented to the court under that provision whether the building of this bridge was a city purpose. That question was, as stated by Judge Pinch in another opinion, ably argued and frankly decided. The building of the bridge was held to be a city purpose, and the ruling was put upon the ground that it had always been the policy of the State for two towns, separated by a stream of water, to bridge the stream at joint expense, and the construction of such a bridge was a town purpose of each town. (P. 488.) The underlying principle of the decision is that the building of bridges, like the building of highways, is a public purpose, which, within the limits of municipal corporations, has always been devolved upon those corporations, and that they may be required not only to build highways within their own limits, but may be required to construct such bridges to adjoining towns upon their limits as may be necessary to afford access to their own territory, for the great body of the people of the State who have occasion to come there. It was conceded in the opinion that the building of bridges, like the building of highways, was a public purpose within the power to construct highways; that they are portions of the highways, and their construction is governed by the same rules as the construction of highways, and the kernel of the opinion lies in the sentence which was just quoted.
It is quite true that one statute of 1869, which authorized the construction of this bridge by a corporation, gave to the corporation the power to construct a railroad track from one end of the bridge to the other, but there was nothing in the case of The People v. Kelly which shows that the attention of the court was brought in any way to' this provision of the statute, or that it appeared that it was the intention of the two cities to construct any such railroad or to do anything more than they were authorized to do by the law of 1874, which was to buy the stock of the company and build the bridge. It cannot be said, in the absence of any reference to that provision of the statute, that the court intended to hold or did hold that the building of a railroad upon this bridge, which was no necessary part of the construction of the bridge, was within the power of the cities, because there was no occasion to pass upon that question.
No other case is cited which, either precisely or by fair inference, *279is conclusive upon the case at bar; and we are, therefore, compelled to examine the question jiractically as a new one.
While this is so, yet we are not without expressions of judicial opinion by the highest court of this State as to what must be considered in examining the question whether any given use is a city purpose. In the case just cited it is said by Judge Eabl that “ each case must largely depend upon its own facts, and the meaning of these words (a city purpose) must be evolved by a process of exclusion and inclusion in judicial construction.” He says that 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 that city. Such works have never heen regarded as within the legitimate scope of municipal government. On the contrary, he says, it would be a city purpose to purchase a supply of water outside of the city and convey it into the city, and for such a purpose a city debt could be created. So he says lands for a park, for the health and comfort of the inhabitants of the city, could be purchased outside of the city limits and yet conveniently near thereto. Such improvements, he says, are for the common and general benefit of all citizens, and have always been regarded as within the scope of municipal government. He says, too, highways or streets leading into a city or village may be improved, provided the improvements be confined within such limits that they may be regarded as for the common benefit and enjoyment of all the citizens. (People ex rel. Murphy v. Kelly, 76 N. Y. 487, 488.) While Judge Eabl, in that opinion, declines to lay down any rule as to what may be a city purpose, or give any definition of the phrase, yet it is evident that he regards it as essential that the object to be attained shall be for the common benefit and enjoyment of all the citizens, and that no purpose is a city purpose unless it complies with that requirement.
The same question came again before the Court of Appeals in The Matter of the Application of the Mayor of New York (99 N. Y. 569). That was an application of the mayor of the city for an order to appoint commissioners to appraise lands to be taken for a public park for the city of New York, in the county of Westchester, outside the limits of the city. The application was opposed upon *280the ground that the taking of the land for a park outside the limits of the city was not a city purpose, and, therefore, the city had no right to incur the indebtedness. The case was decided substantially upon the authority of People v. Kelly, above cited, but Judge Finch, in delivering the opinion of the court, took occasion to examine somewhat into the meaning of the phrase, a city purpose, although he, too, declined to attempt to define it.
It was conceded in that case that the taking of lands for a park inside the city was a city purpose, and the question discussed was whether it ceased to be a city purpose when the lands sought to be taken extended in any degree outside those boundaries. In deciding the question Judge Finch says: “ While * * * it is impossible to formulate a perfect definition of what is meant by a city purpose, yet two characteristics it must have: 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 a predominance of that purpose. And then the thing to be done must be within the ordinary range of municipal action.” (P. 590.) This opinion of Judge Finch was concurred in by all the judges who took part in the decision. It has been followed more than once since, and it must be regarded as an authoritative statement by the Court of Appeals, of two essential elements which are required to constitute a city purpose, in order that indebtedness may be contracted by the city for it.
When the court say that the thing done must be within the ordinary range of municipal action, it is meant, I suppose, that it must be a thing intended to attain the objects for which cities are primarily organized. It is not intended to say by that phrase that a city can do nothing which it or some other city has not done before, but simply to lay stress upon the idea that no city is at liberty to incur an indebtedness for any work, except such as is germane to the purposes for which city governments are established. These are solely the purposes of local administration. It is said by Judge Dillon that municipal corporations are institutions designed for the local government of towns and cities; or, more accurately, towns and cities with their inhabitants are for purposes of subordinate local administration invested with a corporate character. *281(Dillon on Mnn. Corp. § 12.) This local administration must provide for the protection of the people in their persons and property; the care and preservation of their health, and the establishment and maintenance of good order. These things are the ordinary purposes for which a city government is organized on its own behalf. (People v. Detroit, 28 Mich. 228.) In addition to that it has imposed upon it certain other duties which are more especially governmental in their nature, but which its officials are required by statute to undertake as the agents of the Legislature and as a part of the machinery of the State government. The chief of these duties are the making and improvement of the public highways and bridges, and the regulation and control of docks and ferries (Bedlow v. N. Y. F. D. D. Co., 112 N. Y. 263), and the imposition and collection of taxes. (People v. Flagg, 46 N. Y. 401.) I apprehend that no purpose can be said to be a legitimate city purpose unless it falls within one of these classes. So far as I can discover there is no case in the books, nor any discussion by a text writer, in which the acts which a city may properly perform as within a city purpose are not attributed to one of the objects stated above.
If the power to build a railroad is to be regarded as a city purpose it can only be so if it can be ranged within one of the classes above mentioned. This act is a general act, and if the purpose therein expressed is a city purpose for the city of New York, it is equally a city purpose of any other city within its purview or within the State. The Legislature was not called upon to limit the operation of this act to cities of 1,000,000 inhabitants any more than it was called upon to limit the operation of the Street Railway Act to those cities; but if the building of a railway is a city purpose for one city it must be equally a city purpose for any city within the boundaries of the State. Indeed, if it can be said to be a city purpose to transport by artificial means the people of one city from one place to another for their business, convenience or pleasure, I am utterly unable to conceive why it is not equally a town purpose to build railroads from one extremity of the town to the other so that those living at one end of a large town may more conveniently market- their products or do their business at the customary place, than they would with the present means of communication.
*282But the argument of convenience proves too much. If the municipal corporation can he authorized to do whatever may merely enhance the convenience of any large portion of its people, under the pretense that it is a city purpose, it is difficult" to see where the right of incurring indebtedness will stop. It would be convenient to establish cab lines from one river to the other in the city of New York, but no one would dream that an indebtedness to do that could be authorized upon the ground that it was a city purpose.
The same line of argument which lays down as a criterion the convenience of a number of people must have as much force in one case as another, provided there are citizens living within the limits of the municipal corporation whose convenience would be promoted by the establishment of additional means of artificial transportation. There is no just limit in principle where the line can be drawn. The Legislature has limited this act to such cities as shall from time to time have 1,000,000 inhabitants within their boundaries, but that was a mere matter of expediency. If the Legislature had "the power t® authorize it to be done by one city it has equally the power to authorize it to be done by any other city. It cannot be said in any just sense that this power to build a railroad is to be exercised either for the health of the inhabitants or the protection of their persons or property, or for the maintenance of good order. In no way can it affect these things in the slightest degree. Indeed, it is not claimed that the power to build this road grows out of any of these duties. If it can be sustained at all it must be upon the ground that the railroad thus built is a public highway, and that, therefore, it is within the power of a city to establish and operate it.
The duty of establishing highways is undoubtedly devolved upon the different municipal corporations of this State by the Legislature, and is a public purpose; and it may fairly be said, I think, that the establishment of a highway within the limits of a city, although primarily a duty of the State government, is yet a city purpose. But every public purpose to be exercised within the limits of a city is not necessarily a city purpose. The building of a capitol in the city of Albany for the use of the officials of the State was a public purpose for which lands might be taken in the exercise of the right of eminent domain, and yet no one would claim that it was a city purpose, and that the people of the city of Albany could be compelled to pay *283their money to build it. So, the building of fortifications for the protection of the city of New York, or the city of Buffalo, is, no doubt, a public purpose of grave importance to the people of those cities respectively, and yet no one would claim that the building of such works within the limits of those cities was a city purpose for which the city could be made to pay. (Cooley Const. Lim. 219.) These two examples are illustrations of the necessity of confining the definition of a city purpose to something which is ívithin the ordinary range of municipal action
Undoubtedly it is within the ordinary range of municipal action to build a highway; and if this railroad can be said to be a highway within the ordinary definition of highways and adaptable to the same purposes for which highways are usually used, it may fairly be said to be a city purpose; but unless it is either a highway in the same sense as an ordinary street, or unless it is within the purpose for which highways are ordinarily constructed by a city, it clearly is not a city purpose.
It is quite true that, in a certain sense, a railroad is a public purpose for which the right of eminent domain may be exercised and the franchise of which is a public franchise; but yet it is clear that it cannot be said to be a highway in the sense in which ordinary highways and streets are said to be such. An ordinary highway gives to the public a right of passage, with the powers and privileges incident to that right, but it gives that right to each one absolutely and completely. It is essential to the notion of a highway that its use must be common to all citizens. (3 Kent’s Comm. 432.) No one can be excluded from that use. It is constructed under the power of the State for that purpose. The object of its building is that every citizen may go backward and forward upon it at his pleasure; on foot or with such means of transportation as he has at hand. As is said by Judge Peckham in the case of Eels v. A. T. & T. Co. (143 N. Y. 133): “ The primary or fundamental idea of a highway is that it is a place for uninterrupted passage by men, animals or vehicles, and a place by which to afford light, air and access to the property of abutting owners, who, in this respect, enjoy a greater interest in the street than the general public, even though their title to the land stops with the exterior line of the street. It is not a place which can be permanently and exclusively appro*284priated to the use of any person or corporation, no matter what the business or object of the latter might be.” (P. 140.)
At an early day in the history of this State it was claimed that a railroad was only a different kind of highway, arid that using the highway for that purpose was only a different mode of exercising the right which had been acquired by the people. But, as was said by the Court of Appeals, the argument met with no favor from the court. The proposition was promptly and clearly denied. So clearly that since that time no well-considered case has ever attempted to renew it. (Trustees of Presbyterian Soc. v. A. & R. R. Co., 3 Hill, 567; Williams v. N. Y. Cent. R. R. Co., 16 N. Y. 97, 104, 108, 109.) If there is anything clearly settled in this State it is that there is a vast difference, not only in circumstances, but in principle, between the use of land for an ordinary street and its use for a railroad. Indeed, the circumstances under which highways are constructed show that such must be the essential right attached to them. It is necessary for the existence of civilized society that all men should have means by which they may communicate with their neighbors, and perform their public and private duties as citizens. This necessarily requires them to go from their homes to the places where such things are to be done. To enable them to do that it is absolutely essential that some way should be established over which every one of them may have the right to go. This, in' the nature of things, can be done only by the government, which has the right to acquire land necessary to give the right of way from one place to another. I apprehend that upon this necessity lies the foundation of the power of the State to build and maintain highways and bridges and ferries. But when those means of communication are established, the duty of the State has been done. If business convenience requires a more rapid means of transportation than each man has at hand, for the convenience of a part, but not all, of the community, it is not for the State to furnish it, but that must more properly be left to private enterprise which shall supply such rapid means of communication as business necessities require. That has been devolved in this country upon private corporations, and while such corporations organized for such ends have been held to he carrying out to a certain extent a public purpose, it has been recognized that the use of highways for those purposes was not the *285ordinary use of a highway, hut something additional, which imposed a different burden upon the land; which applied the land taken to other than ordinary highway purposes, and which would not be permitted to such an extent as would obstruct the passage of the street, or take away the right of the public to use it. (Trustees of the Presbyterian Soc. v. The A. & R. R. R. Co., supra; Fobes v. R., W. & O. R. R. Co., 121 N. Y. 505; People v. Kerr, 27 id. 188; Drake v. Hudson River R. R. Co., 7 Barb. 508.) In each of these cases the rule was recognized that the construction of a railroad upon a street imposed a different burden upon the land than that put upon it by dedication for ordinary street purposes. Of this there can be no doubt. The difference is plain, and need not be enlarged upon. It is idle to say that a strip of land upon which there is no roadway; to which the public have no access except at certain places; over which they have no right to go except in carriages furnished for them; upon which if they go they are trespassers, and which is to be leased .to a private corporation which shall have the sole and exclusive use of it, is a highway and serves any of the purposes of a highway. It is nothing of the sort, and its construction cannot, 1 think, be attributed to the power given to municipal corporations to build highways in the ordinary sense of that word.
If I am right in this conclusion, and I see no escape from it, the power of a city to build a railroad within its limits cannot be called a city purpose, within the authority which it has to lay out and construct highways.
I can find no other object, among those for which municipal corporations are organized, to which this power can be attributed.
The cases above cited hold that it is within the power of the State to impose upon a highway the additional burden of a railroad, but they do not hold that the State can build it; and if the State has that power it does not follow that a city has it, because there is no constitutional prohibition in that regard upon the Legislature.
Unless the power to build this railroad can be said to be a city purpose under the duty which has been imposed upon a city to lay out and construct highways, I am utterly unable to see from what other one of the purposes for which municipal governments are organized it can be derived.
*286This power must stand, if at all, upon the broad proposition that it is within the proper scope of the duties of a municipal corporation to do within the limits of the city whatever may add to the convenience of any large portions of the citizens in the transaction of their business, or which will to any considerable extent increase the value of any portion of their property. Indeed, as I understand the opinion of the majority of the court, this is said to be a city purpose solely upon the ground that it tends to the convenience and comfort of a large portion of the inhabitants, in the transaction of their business, and it becomes important because, at present, private persons cannot be induced to undertake it. But the fact that the thing which ordinarily should be intrusted to private enterprise and which has heretofore always been so intrusted may, to some extent, partake of a public character because it promotes the convenience or prosperity of a municipal corporation, has not been supposed to invest that enterprise with such a public nature as to authorize municipal corporations to undertake it. (Weismer v. Village of Douglas, 64 N. Y. 91; Hay v. Cohoes Co., 3 Barb. 42; Memphis Frt. Co. v. Memphis, 4 Cold. [Tenn.] 419; Gardner v. Newburg, 2 Johns. Ch. 161; Matter of N. F. & W. R. Co., 108 N. Y. 375.) These authorities are a complete answer, as it seems to me, to the proposition upon which the constitutionality of this act is made to stand.
As is said by Judge Dillon : “ To clothe them (these corporations) with powers to accomplish purposes which can better be left to private enterprise is unwise. Their chief function should be to regulate and govern. To invest them with powérs of individuals or private corporations for objects not pertaining to municipal rule is to pervert the institution from its legitimate ends and to require of it duties it is not adapted satisfactorily to execute.” (Dillon on Mun. Gorp. § 12.)
The Constitution says that no city shall contract an indebtedness for the purpose of performing such duties. That provision of the Constitution was adopted at a time when municipal corporations throughout the State were incurring large indebtedness by investments in the stock and bonds of private corporations organized for precisely the same purposes as are sought to be attained here. It was intended by that amendment that the debts of cities should be confined to purposes which were purely municipal.
*287It is quite true that for over 200 years the city of New York has owned and controlled the docks along the water front and the ferries extending to the places on the opposite side of the rivers which bound it, and that it has leased these ferries and docks to private individuals. But it must be recollected that long before the constitutional prohibition now in question was adopted, this property was the private property of the city of New York, and that provision of the Constitution was not intended in any way to affect the management by the city of its private property.
But even were that not so, the erection and control of docks and the management of ferries has always been a public purpose which it is within the power of the Legislature to devolve upon any municipal corporation, precisely as it has devolved upon them the duty of building highways.
It is conceded that this act is a departure from, and an advance beyond, all previous legislation, in that it gives to the cities mentioned in it powers which they have not heretofore exercised. It seems to me, as I have endeavored to show, that this power is not only outside the ordinary range in which municipal corporations have thus far acted, but it extends their powers further than,can be justified by any fair construction of our Constitution, and certainly further than ever has been done before. This whole legislation is fraught, as I believe, with danger to the Commonwealth, because the necessary effect of it cannot be otherwise than to draw within the power of the Legislature, and to impose upon the State and city authorities, the management and control of every agency which can in any way tend to the convenience of the people, or which can be supposed in any Avay to advance their prosperity.
As is said by Judge Andrews in The Matter of the Niagara Falls & Whirlpool R. R. Co. (108 N. Y. 385) “it would be impracticable and contrary to our usages for the State to enter upon the general business of constructing and operating railroads.” It is just as much inqmacticahle and contrary to our usages for the State to devolve this duty upon the municipal corporations Avhich are organized for entirely different purposes.
This particular scheme commends itself to great numbers of people because of its apparent necessity, but none the less it is a step *288beyond the ordinary duties of a municipal corporation which opens up the way to the most serious evils to the community.
For these reasons, and within the rules which have been laid down by the courts and the necessary inferences to be made from them, I believe that the purpose to be accomplished by this act is entirely outside the ordinary range of municipal purposes and cannot be said to be a city purpose, and no city can be permitted to contract an indebtedness to do it.
For these reasons, in addition to those stated by Judge Ingraham, I am compelled to dissent from the majority of the court.
Judgment affirmed, with costs.