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App. Div.] SECOND DEPARTMENT, MARCH TERM, 1897.

This view is borne out by a reference to the discussion of the militia article in the Constitutional Convention. While it is true that the intent to be arrived at in such a case as this is the intent of the People who ratified the Constitution, it is proper to look into the proceedings of the convention by which the instrument was framed, when the court is seeking to ascertain the purpose which led to the insertion of a particular provision. (Cooley on Const. Lim. [6th ed.] 80.) In this State the courts have often consulted the journals and debates of the Constitutional Convention which formulated a given article or section of the Constitution, in order to gain light upon its correct interpretation or application. (Coutant v. People, 11 Wend. 513 ; Clark v. People, 26 id. 602; People v. Purdy, 2 Hill, 37; Matter of Keymer, 148 N. Y. 224; People ex rel. McClelland v. Roberts, 148 id. 369.) So, also, the journal of the Constitutional Commission of 1873 was referred to by the Court of Appeals in the case of The People ex rel. Henderson v. Supervisors (147 N. Y. 20). An examination of the proceedings of the Constitutional Convention of 1894 in reference to the last clause of the 3d section of the article on the militia, leaves no doubt as to what was the purpose in the minds of those who proposed that amendment. “We also provide in this article," said Mr. Hedges, “ that it shall be the duty of the Legislature at each session to make sufficient appropriation for the maintenance thereof. We do that with the idea that there might some time arise a condition where no appropriation might be voted. We thus make it incumbent upon our legislators to provide for the National Guard.” To the same effect were the remarks of Mr. Cochran, who called attention to the fact that there was nothing in the Constitution of 1846 to prevent the Legislature from wiping the National Guard out of existence, and declared that the last clause of section 3 had been inserted in the new Constitution for that reason. (Rec. Const. Conv. of 1894, vol. VI, pp. 2585–2591.) No other reason for the change appears to have been suggested. The plain object was to insure the continued support of the militia by legislative action. To this end the Legislature was commanded to make “sufficient appropriations for the maintenance thereof” at each session. While this called for annual military appropriations, it did not necessarily require that the entire expense of maintaining the

APP. Div.– Vol. XV. 12

Second DEPARTMENT, MARCH TERM, 1897. [Vol. 15. National Guard should thus be provided for if a portion of the cost of maintenance was otherwise defrayed by means of the operation of a general law of the State, such as the Military Code, or any other statute, under which money raised by taxation was applied to the support of the military establishment. The annual appropriations directed by section 3 would be “sufficient," if, when taken together with all the other money applicable to the maintenance of the militia, they were adequate to keep up the organized, uniformed and disciplined force of 10,000 enlisted men required by the first part of the same section.

At the time the militia article of the new Constitution was under discussion in the convention tlie Military Code made the compensation of armorers and janitors of armories a county charge. For years previous the general appropriation bill had made generous provision for the National Guard, and the amount appropriated in 1894 had been $100,000, with $25,000 additional for the naval militia. (Laws of 1894, chap. 654, vol. 2, p. 1655.) The Military Code also fixed the number of troops to be maintained at not less than 10,000 enlisted men. This requirement was placed in the Constitution, and the duty to maintain the force was enjoined upon the Legislature; but there is no evidence in the proceedings of the convention that so great an additional change was contemplated as would have been involved in forbidding any moneys to be applied to the support of the militia except such as were directly appropriated every year. The effect of such a change would be to transfer to the State at large expenses in connection with the armories and other military matters, amounting to many thousands of dollars a year, which have heretofore been borne by particular localities; and if it had been understood or intended that this amendment was so to operate, it is difficult to believe that the fact would have escaped mention in the debates of the convention. Nor was there any evil calling for such a reniedy. While the existing statutes requiring couties to provide and repair armories for the military organizations within their boundaries imposed a greater burden than other parts of the State liad to sustain, such counties enjoyed corresponding advantages in the presence of troops in their cities and towns, where, rather than in the rural districts, the militia is most likely to be needed in the suppression of mobs and riots.

App. Div.] Second DEPARTMENT, MARCH TERM, 1897.

I think this is a case for the application of the doctrine laid down by DENIO, Ch. J., in The People v. Draper (15 N. Y. 532, 543), where he says: “Plenary power in the Legislature for all purposes of civil government is the rule. A prohibition to exercise a particular power is an exception. In inquiring, therefore, whether a given statute is constitutional, it is for those who question its validity to show that it is forbidden.” This may be done, of course, by appealing to an affirmative provision of the Constitution, for as the same learned judge adds: “ Every positive direction contains an implication against anything contrary to it, or which would frustrate or disappoint the purpose of that provision.” No prohibition should be implied in restraint of legislative power, however, from affirinative prescriptions in a Constitution, unless the implication is perfectly clear. I have endeavored to show in the present case that, in view of the condition of things which existed when the Constitution of 1894 was adopted, and the purpose which its framers sought to accomplish by the 3d section of the article relative to the militia, the Legislature has not been deprived of the power to impose a part of the expense of maintaining the National Guard upon the counties in which armories are situated. If this conclusion is correct, section 179 of the Military Code, as amended in 1896, is constitutional, and requires the payment of the claims of these relators by the respondent.

I advise the reversal of the orders appealed from.

All concurred.

Orders reversed and motions granted, with ten dollars costs and disbursements in each case.

SECOND DEPARTMENT, MARCH TERM, 1897.

[Vol. 15.

ADRIANCE, PLATT & COMPANY, Respondent, v. Aaron Coon,

Appellant.

Venue of transitory actions the county where the transaction took place, preferred

convenience of experts not consulted.

The trial of transitory actions is usually to be had in the county where the

transactions took place, and when it appears that an equal number, or about an equal number, of material witnesses to the transaction reside there, the trial will be held in such county, although an equal number of witnesses reside

elsewhere. The convenience of expert witnesses is not to be consulted in deciding the ques. tion as to changing the place of trial.

APPEAL by the defendant, Aaron Coon, from an order of the Supreme Court, made at the Dutchess Special Term and entered in the office of the clerk of the county of Dutchess on the 8th day of December, 1896, denying his motion to change the place of trial of the action from the county of Dutchess to the county of Cattaraugus.

N. M. Allen, for the appellant.

Charles F. Brown, for the respondent. Hatch, J.:

The action is brought to recover the purchase price of a certain machine used for reaping grain, and called a “binder and bundle carrier.” The complaint alleged that the contract of sale was in writing; that plaintiff had fulfilled the contract upon its part, and that the defendant had made default in payment in accordance with the terms of the contract, for which judgment was demanded with interest. The defendant answered hy a denial, putting in issue the execution of the contract, and further answered by averment that plaintiff's agent offered to sell the said machine to the defendant, and at the time of such offer represented to the defendant that said machine was well built, of a steel frame, stout and strong, and fit to do the work of reaping and binding as well or better than any machine made; that if the defendant would take it and try it, if it did not work to suit him, the plaintiff would take it away, and if it did suit him and he concluded to purchase the same he could do so upon the terms App. Div.] SECOND DEPARTMENT, MARCH TERM, 1897. stated. The answer further avers that the defendant received and tried the same; that the same was not as represented, but was faulty in construction, made of poor and imperfect material, and did not work to suit him or comply in any respect with the recommendations given to it, and that defendant could not use it to advantage for the purposes for which it was constructed; that after trying the same and finding that he could not use it to advantage or profit the defendant notified the plaintiff that he would not purchase said machine, and requested the plaintiff to remove the same from his premises.

It is conceded that whatever arrangement was made, whether a written contract of sale or a conditional agreement, took place and was consummated in the county of Cattaraugus. It is also conceded that the defendant did not sign the written contract of sale. But plaintiff's claim is that the contract was in fact signed by plaintiff's agent, Wilbur, in pursuance of a direction given by the defendant so to do. It was the view of the learned judge below that if the issue raised by the pleadings related alone to the execution of the written contract of sale, that then the issue would properly be triable in Cattaraugus county. This view is undoubtedly correct, and we are, therefore, to see if the issue relating to the quality of the machine which, as we have seen, is raised by the pleadings, so far changes the condition as to call for the retention and trial of the action in Dutchess county.

It is a general rule in transitory actions that the trial is usually to be had in the county where the transactions took place, and when this fact is supplemented by the residence in such county of an equal number, or about an equal number, of material witnesses to the transaction, the place of trial will be held to be in such county, although an equal number of witnesses reside elsewhere. (Hausmann v. Moore, 7 App. Div. 459; Smith v. Mack, 70 Hun, 517; Payne v. Eureka Electric Co., 88 id. 250; Wright v. Burritt, 45 N. Y. St. Repr. 9.)

There may be special circumstances in particular cases which will call for the application of a different rule. But we do not find such circumstances present in the case now before us. It appears by the papers submitted in opposition to the motion that plaintiff las seventeen witnesses who reside in the county of Dutchess, and which, it

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