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one locality, apparently, may actually receive art. 3, § 18. But this is not a private or lotheir benefits. The classification of cities by cal bill, since by its terms it applies to every population is an idea recently embodied in part of the state where the conditions exist the constitution, and good reasons exist why, necessary to put it in operation, or where in a general law, reference may be had to they may exist at any time in the future. conditions of population, whether in coun It is just such a law as the very same secties, cities, towns, or villages, or with respect tion of the constitution permits the legislato a proximity to cities of a certain growth. ture to enact. After enumerating various We shall adhere to the rule, now settled, that subjects upon which the legislature is foran act embracing all things of a certain class bidden to legislate by a private or local bill, is a general, and not a local, act, although, the constitution provides that "the legislature by reason of some limitation, based on pop shall pass general laws providing for the ulation or other condition, only a particular cases enumerated in this section, and for all locality can, in the actual situation, receive other cases which in its judgment may be its benefits (Ferguson v. Ross, supra); but, provided for by general laws." Thus, it is when restriction is imposed upon restriction, plain that the constitution permits the legisuntil, as in the present case, its generality is lature to enact general laws on every subject hidden and impossible, the courts should not which, by the terms of the section, it is forhesitate to adjudge its invalidity. When bidden to legislate upon by means of a prisuch an act as this has been passed by the vate or local bill. The constitution says that legislature, the question may well be asked certain things shall not be done by a private whether the constitutional provision has or local bill, but that all these things may be come to be regarded as a dead letter, and done, providing the law is general in form. whether its continued violation by the legis But it goes much further, since it provides iative body may be justified upon such that the legislature may pass a general law grounds. The question is whether the con for all cases which in its judgment may be stitutional provision shall continue to stand provided for by that form of legislation. as a vigorous expression of the will of the Now, the case at bar is one which the legispeople, or whether the legislature may evade lature in its judgment provided for by the Its inhibition, with the approval of the judi passage of a general law, and the whole arcial branch of the government. It is my gument against the validity of this statute judgment that, when a constitutional ques is either that the legislature was wrong in tion is presented to the court, it should be the exercise of its judgment, or that, when it answered according to the view which takes passed in form a general law, it did not mean in the purpose of the adoption of the consti

what it said, but was all the time seeking to tutional provision and the consequences to violate the constitution by the enactment of the people of its disregard. I do not think it a private or local bill, and thus it has sucto be a safe principle of construction to adopt ceeded in its purpose. that the general form of the legislative en The difficulty with this argument is that actment may save it from condemnation, it completely reverses the presumption that when a willful and impolitic, or unnecessary, always prevails to sustain a statute until the purpose to evade the constitutional mandate courts are compelled by force of reason or is to be seen through the transparent device. authority to condemn it as in conflict with That would be too fraught with danger to the fundamental law. Moreover, it introthe efficiency of the constitutional provision. duces a new method for testing the constituUnder this view of the law in question, it tional validity of statutes, in that it asserts becomes unnecessary to consider the other that the courts may institute an inquiry into questions raised, and the order appealed from the conduct and motives of the legislature in should be affirmed, with costs.

the enactment of a law, and, if satistied from

the facts that the legislature intended to proO'BRIEN, J. (dissenting). I think that the vide for a particular case in a particular lolegislature had power to enact chapter 286 cality, that the law passed for that purpose of the Laws of 1897, and that is the only is not a general law, as it professes to be, question in this case. The act is entitled but a private or local law, and therefore void “An act to provide for the widening and in under the restrictions of the constitution. proving the highways in towns having a to This doctrine has led the court below in tal population of eight thousand or more in this case to try an issue with respect to the habitants and containing an incorporated vil intention and motives of the legislature in lage having a total population of not less the enactmeut of the statute, and having bethan eight thousand and not more than fif come satisfied from all the facts that there teen thousand inhabitants.” The learned was but one place in the state, or, at most, court below has held that this act is in con but a few places, where the conditions existflict with the constitution, and therefore void. ed for the operation of the law, it was not, It is clearly an act providing for the widen therefore, a general law as the legislature ing and improving of highways in certain said it was, but a local law, and for that reatowns.

son void. The argument against the valid. The legislature is inhibited from passing any ity of the statute may be made plainer by private or local bill for this purpose. Const. reference to the concrete case now before us.

It is the case of five persons who state that powers of another is simply usurpation. This they are residents and freeholders of the court has often before been invited to usurp town of New Rochelle, and they ask the court the inquisitorial office of judging of the moto appoint commissioners for the purpose of tives of the legislature, and inquiring into improving a road under the statute. Their the bona fides of that body in discharging its petition sets forth precisely the conditions duties, but has always declined. In a wellnecessary in order to set the statute in mo known case, where there was much more reation. The state of things disclosed by the son for embarking upon such an inquiry than petition so exactly fits all the conditions of there is in the case at bar, Judge Denio anthe statute that the learned appellate division swered the argument in these words, which was induced to institute an inquiry as to the seem to me to be a correct statement of the facts upon which the legislature acted, and, duty of the judiciary when called upon to renot being able to find any other place in the view the acts of another department of the state where the same conditions existed, it government: "If a particular act of legis. concluded that the statute must have been lation does not conflict with any of the linpassed to meet a case in New Rochelle, and itations or restraints which have been rebence in violation of the cocstitution.

ferred to, it is not in the power of the courts If an act of the legislature can be over to arrest its execution, however unwise its thrown in consequence of the existence or provisions may be, or whatever the motives Donexistence of certain extraneous facts or may have been which led to its enactment. conditions, the procedure established by law There is room for much bad legislation and for an inquiry as to all matters of fact should misgovernment within the pale of the conbe observed. It is not the province of an stitution; but, whenever this happens, the appellate court, at least in the first instance, remedy which the constitution provides, by to decide what the facts are in any case.

If the opportunity for frequent renewals of the it was competent or material to find how legislative bodies, is far more efficacious than many places there are in the state in which any which can be afforded by the Judiciary, the conditions exist to put the statute in op The courts cannot impute to the legislature eration in order to determine whether it was any other than public motives for their acts. a general or local law, then that issue should If a given act of legislation is not forbidden have been tried in the regular way in the by express words, or by necessary implicacourt of original jurisdiction, where the tion, the judges cannot listen to a suggestion whole matter was open to proof, if the court that the professed motives for passing it are had anything at all to do with the question. not the real ones. If the act can be upheld

But the learned court below determined on upon any views of necessity or public exits own knowledge, not only that New Ro pediency, which the legislature may have enchelle was the only place where the law tertained, the law cannot be challenged in the could be applied, but that it was the only courts." People v. Draper, 15 N. Y. 545. place where the conditions ever would exist. The statute in this case is challenged on In order to pronounce the law invalid, the the sole ground that the legislature intended court must not only consider the present state to and did pass a local law for improving a of things but the future as well.

particular highway in the guise of a genThere is really no authority in any system

eral law. That is a matter that the court of jurisprudence for assailing legislative acts has nothing whatever to do with, and if it upon such grounds. If the courts can go be were all true in fact it would not invalidate hind the legislative declaration on the face the law, since the constitution expressly auof a bill that it is a general law, and institute thorizes the legislature to do anything that an inquiry as to the purpose and motives of cannot be done through a local bill by an. the legislature, for the purpose of declaring other form of legislation, namely, a general it to be a local law, such a principle is de law. It is common experience that many structive of that system of checks and bal general laws originate in some local necesances by which the constitution has assigned sity or in some local evil. They may have to each department of the government its been intended to meet some particular case proper powers and functions. The courts or supply some local want, but they are not have no right to say that a law which the local laws, for the very plain reason that legislature has declared to be a general law the legislature has given to them the form is , nevertheless, only a local law, because of general laws, and the courts have no right they can find only one place, or but a few to go behind the decision of the legislature. places, in the state where it can be applied. That body had the power to determine, when It is not within the province of the judiciary enacting this statute, whether a general law to impute to the legislature a motive or pur was necessary, and so it enacted such a law pose contrary to that expressed on the face complying with the forms of the constituof the bill, and so, when it declares a law tion. It is not within the power of the juto be general, it is not competent for the diciary to say that the legislature meant one courts to say, upon an inquiry with respect thing and said another, or that there was to extraneous facts, that it was intended to no necessity for the legislation. That would be local. Any encroachment by one depart. be a direct attack by one department of the ment of the government upon the rights and government upon the powers and functions

50 N.E.-5

We have recently upheld the validity of a

of another, and a usurpation of authority counties there are now, or may be in the subversive of the principles of the constitu future, we do not know, and it is not mation. The decisions of this court are all in terial that we should. Whether many or the same direction, and clearly sustain the few, the law operates upon them all alike, statute now in question. In Manufacturing and reaches them, not by a separate selecCo. v. Shanahan, 128 N. Y. 345, 28 N. E. 358, tion of one or more, but through the general the question was whether a statute which class of which they are invidual elements. on its face appeared to be public was not The force of the law of 1881 is not localized really passed to promote a private purpose. in Kings county and confined to its terriIn that case the trial court did what has not tory. By its terms it applies equally to been done in this, namely, tried the question every other county which may prove to be and made findings that the act was private within the constituted class. It is said there and passed for private purposes, and there is but one such county, and so it was said fore unconstitutional and void. But this there was but one elevated railroad. Neicourt reversed the judgment for the reasons ther fact at all narrowed the terms of the hereinbefore stated.

law. Those terms in each case were broad The constitution forbids the legislature enough to cover every county in the state if from passing a private or local bill author- it had the required city and the mapped terizing the laying down of railroad tracks. ritory on the one hand or its own elevated Chapter 225 of the Laws of 1893 enacts that road on the other. The case cited adds exany bridge company over a river connecting ample to definition, and, following its docany city in the state containing more than trine, we must hold the law of 1881 to be 1,000,000 inhabitants with any other city in general and not local, and so not a violation the state may lay tracks and operate a rail- | of the constitution." way upon its bridge. Now, there never was the least doubt that the law was intended statute which authorizes the expenditure of for but one place in the state, and that was at least $55,000,000 to build a railroad in the a bridge across the East river from New city of New York. Sun Printing & PublishYork, and yet this court held it to be valid ing Ass'n v. City of New York, 152 N. Y. 257, as a general law. Bridge Co. v. Smith, 148 46 N. E. 499. That statute is in the form of N. Y. 540, 42 N. E. 1088. The legislature can a general law, just as this is, but no one pass no private or local bill increasing or de ever even attempted to disguise the fact that creasing the allowances or compensation of it was enacted for that city alone. It propublic officers during their time of office. vided for the building of railroads in cities But chapter 710 of the Laws of 1892 author containing over 1,000,000 inhabitants, and in izes that to be done in the fire department that disguise it appeared as a general law. of all cities having a population exceeding That statute conferred power on a great mu900,000. Of course every one knows that nicipality to build a railroad. This statute, there were but two cities in the state to even if all that is said with respect to its which this act could be applied, or that it local character be correct, conferred power was intended for, but this court held it to on a small municipality to improve common be a valid general law. In re Dobson, 146 roads. If the former law is valid, certainly N. Y. 357, 40 N. E. 988. It is impossible the latter is. There were many weighty reamake any distinction between the case now sons for disapproving that law that do not under consideration and numerous others in exist in this case, and, if the courts were disthis court where such statutes have been posed to indulge in the reasoning now inheld valid. In re Petition of New York El. voked against the statute in question, we R. Co., 70 N. Y. 328, is one of them, and In could not have sustained it. It would be te. re Church, 92 N. Y. 1, is another. Indeed, dious to enumerate all the cases in this court the latter case was identified and admitted to in which just such legislation has been upbe a law for a single county, since the con held. Having sanctioned so many gigantie ditions existed in no other county. Judge local projects that took the form of general Finch, in answer to arguments precisely laws, though clearly local in all their objects such as are now made in this case, stated and purposes, it would seem to be inconthe principles upon which such laws are re sistent, if not unwise, to change the law now garded and treated as general, and not local: in order to defeat a statute that has no other "A law relating to particular persons or purpose than the improvement of certain things as a class was said to be general, country roads. Whether it is a good law or while one relating to particular persons or a bad one, it cannot produce such public misthings of a class was deemed local and pri chief as a decision which practically upsets vate. The act of 1881 relates to a class, and all rules that have heretofore prevailed conapplies to it as such, and not to the selected cerning the power of the legislature to acor particular elements of which it is com complish by a general law what it is forbidposed. The class consists of every county den to accomplish by a local law. The evils in the state, having within its boundaries a of such legislation, if they exist, can be remcity of one hundred thousand inhabitants, edied in some other way than through an and territory beyond the city limits mapped encroachment by the courts upon the propinto streets and avenues. How many such ince of the legislature.

It is idle to attempt to make any distinc ple. It is one of the functions of all civilized tion between these cases and the case at bar. governments to build or improve highways It is suggested that the legislature may pass generally or locally. The legislature of this a private or local bill, in the form of a gen state possesses that power in the broadest eral law, provided it be presented in that sense. It has the same power to improve guise, by means of a classification based up one highway in a town that it has to imon population alone. But in all the cases re prove a highway from one boundary of the ferred to there were other conditions besides state to the other. The only limitation upon population. It is said that in this case the this power is with respect to the mode of operation of the statute is hedged in by seven procedure. The constitution says that it shall conditions that exist only in one place. not proceed to build or improve either by a There were just as many in the Church Case, private or local bill, but that it may accomif not more, as will be seen, if it is thought | plish both purposes by means of a law genimportant to count them. But why a stat eral in its terms. The decision in this case ute surrounded by seven uncertain conditions is virtually that the legislature cannot imthat may or may not exist in various parts prove the road in question by any form of of the state is bad, while another statute, de legislation whatever. If it passes a bill for pending upon one certain condition that can that purpose which is private or local on its not possibly exist in but one locality, like a face, it is clearly unconstitutional. If it city containing not less than a million in passes a general law, as it has in this case, habitants, is good, it is impossible to under the courts will say to the legislature that stand. If there is any distinction between they have examined all the facts, and have the two cases it is in favor of the former concluded that, while the law is general on and against the latter.

its face, yet it was not in good faith intendWhere a general law is operative only in a ed to operate generally, either now or in the city containing not less than a million peo future, and that they have become satisfied ple, it is localized beyond any possibility that in spite of the legislative declaration it of mistake. Not so with the statute now be is a private or local law in disguise, and fore us.

Whether it applies to a few places therefore void. Thus, the legislature is unor to many places depends entirely on the able to move in one direction or the other, if accuracy of the investigation into the facts the courts for any reason are against the made by a court on appeal, without any evi. law. The plain meaning of the constitution dence in the record as to these facts, but up is that the legislature shall be the sole judge on its own knowledge, which may or may of the necessity of every law, and when it not be correct. So that any attempt to make passes a law general in form, though at the a rational or sound distinction between this time applicable only in a limited locality, it case and those referred to must utterly fail. is not open to question in the courts. If there is any public necessity for invali The arguments against the decision in this dating a statute providing for the improve case might be multiplied, but I have been ment of certain country roads, which I can content to outline them. It is enough to say, not perceive, there is only one way to do it, generally, that it is founded on a dangerous and that is to say that all our previous deci and vicious principle. It is nothing less than sions with respect to this class of legislation an assertion by the judiciary of the power to were wrong, and should be overruled. It is review the work of the legislature upon an simply impossible to give any satisfactory inquiry as to extraneous facts, and to set reason for holding a local act, disguised in aside a statute, if satisfied that it was not the form of a general law based upon pop enacted in good faith or that the professed ulation, valid under the constitution, and motives for its passage were not the rea] another local law, disguised in some other ones, or that the real purpose was private, form, or by some other conditions, invalid. while that stated is public. Such a princiIt is trifling with the constitution to say that ple is subversive of every independent power whether a law is general or local depends conferred upon the lawmaking body by the upon the form of the disguise; and to hold constitution. We have no more power to that, if the disguise is so open and notorious annul a statute upon such considerations that it can deceive no one, and is readily de than we have to inquire whether it is not the tected, as in those cases where the act ap product of corruption in the legislature or plies to cities of not less than a million in in the executive department. habitants, it is a good law, while if the con The scheme of representative government ditions take a broader range, so as to make it under a written constitution dividing all powapplicable more generally, as in this case, it er among three departments has been in operis a bad law, is a process of reasoning that, ation on this continent for more than a cento say the least, is not very satisfactory or tury. It is the one great feature in the fed. persuasive.

eral constitution that was new and that has It is obvious that all legislation of this char commanded the admiration of the world. It acter must rest upon some basis more sub is the distinctive feature in every state constantial than mere verbal distinctions found stitution, and in none of them has this divied upon conditions of population and other sion and distribution of power been more conditions. This case illustrates the princi carefully observed than in our own. Under

this system we have had all kinds of laws 4. Property conveyed by a husband to his enacted by congress and by state legislatures,

wife, the conveyance to be void if she abandons

or refuses to take care of him, cannot be reand the courts have freely exercised the pow

covered because of a breach of such conditions er of subjecting them all to the test of the after a decree of divorce has been granted. constitution. But it is safe to say that never before in any court of last resort has a stat

Appeal from circuit court, Hancock counof

ty; Charles G. Offutt, Judge. fact with respect to the existence of the conditions necessary to give it operation, or

, on the ground that the judgment of the law

mind, against Gussie M. Walker and others, making body was improperly or unwisely ex

to quiet title to real estate. From a judgercised, or that the professed motives for its

ment in favor of defendants, plaintiff apenactment were not the real ones.

peals. Affirmed. It is too plain for concealment that these Richard A. Black and Saml. A. Wray, for are the grounds upon which the statute in appellant. E. W. Felt and Marsh & Cook, question has been set aside. Whether the for appellees. conditions which are necessary to put this law in operation exist only in one county, or JORDAN, J. Thomas Walker, as guardian in twenty counties, is a fact that does not

of William C. Walker, a person of unsound appear on the face of the statute.

It is as

mind, filed his complaint in three paragraphs; certained only through an independent ex

and on the 15th day of December, 1896. intraneous inquiry conducted by the court on

stituted this action against Gussie M. Walker, appeal, and, even after it is concluded, no

William C. Dudding, and William H. Moore, one professes to know or ventures to assert

the appellees in this appeal, whereby he anything with respect to the localities where

sought to set aside a certain antenuptial conthe conditions existed,--whether few or many

tract, together with certain deeds executed at the date of the enactment of the law,-and

by his said ward prior to his being adjudged much less as to the places where the con

a person of unsound mind, and to quiet the ditions may exist 10 years hence. It cannot

title to the real estate described in the combe denied that the law on its face includes

plaint. Copies of the deeds involved in the every county but one, and is operative in

action are filed as exhibits. The material every locality where the conditions exist or

facts disclosed by the first paragraph of the may exist in the future, and that the only

complaint, and the exhibits filed therewith, objection ever made to it was that, as matter

may be summarized as follows: Some time of fact, these conditions do not exist in a

in 1896 (the exact date is not stated) William sufficient number of places to give the stat

C. Walker, the ward, was adjudged by the ute the character of a general law, and there

court to be a person of unsound mind, and fore it must be a local law, the declaration

plaintiff was appointed his guardian. On of the legislature to the contrary notwith

and prior to May 28, 1894, said Walker was standing. If the courts may do that in this

the owner in fee simple of the lands mencase, they may do it in every case, and hence

tioned in the complaint. Prior to March 16, I repeat what has been already stated, that

1894, Walker's wife died, and, after living such a principle subjects the action of the

as a widower for some time, he became delegislature, in all cases, to the control of an

sirous of again marrying, and formed the acother department of the government. The

quaintance of Gussie M. Wachestetter, who order appealed from should be reversed.

was his junior by many years, and whose

character, as is averred, at that time was PARKER, C. J., and HAIGHT and VANN,

bad. Soon after becoming acquainted with JJ., concur with GRAY, J., for affirmance.

this woman, William C. Walker, who was BARTLETT and MARTIN, JJ., concur with

then an old man, as is alleged, feeble in body O'BRIEN, J., for reversal.

and mind, invited her to come to his home

and reside, which she did, and there lived as Order affirmed.

a member of his family for about a month, during which time he proposed to her that

she marry him, which proposition she acceptWALKER et al. v. WALKER et al.

ed; and accordingly, on the said 16th day of (Supreme Court of Indiana. April 21, 1898.)

March, 1894, they were married at Hancock APPEAL-SưFFICIENCY OF ANSWER-DIVORCE-EF

county. Ind., and became husband and wife. FECT AS TO PROPERTY RIGHTS-CAPACI

During the time said Gussie M. resided in the TY OF PARTIES TO MARRY.

family of William C. Walker, prior to his 1. An answer directed to an entire complaint marriage to her, it is charged that he was must, in order to withstand a demurrer, be

under her influence and control, and by good as to all the causes of action stated in the complaint.

means thereof she wrongfully caused and 2. A decree of divorce adjudicates all prop induced him to execute an antenuptial conerty rights or questions growing out of or con tract, whereby he agreed and promised to nected with the marriage. 3. A decree of divorce affirms the capacity of

convey to her 80 acres of his land, being a the parties to enter into the marriage con

part of the real estate in suit; and it is altract.

leged that, in consideration thereof, she

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