author: Maynard, J.

text:
    Elizabeth D. De Lancy, Resp’t, v. Henry Piepgras, App’lt, John Hunter, Resp’t.

      (Court of Appeals,

      Filed April 11, 1893.)

    1. Ejectment — Title—Land under water.
    In 1666, a royal patent was issued to one Pell, creating the manor of Pelham, comprising a large territory upon the mainland opposite Minneford Island, and including the island. In 1763, letters patent were issued to one Palmer, to-a tract of land under water of 145 acres, completely surrounding the island, reserving an annual rent for the non payment of which the patent was liable to forfeiture. Held, that the crown did not part with the title to these lands when the manor of Pelham was created, and that it became vested in Palmer by the grant of 1763.
    2. Same — Sale for nonpayment of quit rents.
    Pursuant to chapter 222 of the Laws of 1819, the comptroller, in 1826, by reason of the quit rents being in arrear, advertised and sold the lands described in Palmer’s patent, and gave a deed to respondent’s devisor. Held, that the right of the royal government to enter for nonpayment of rents became vested in the state at the Revolution," and that the forfeiture and resumption of possession was effectually accomplished by the proceedings of the comptroller.
    3. Same.
    The comptroller’s deed established prima facie the existence of the jurisdictional facts authorizing a sale of the lands. Being regular and valid upon its face and reciting a compliance with all the provisions of the law upon the subject, extrinsic evidence was not required in order to render it admissible as the act of the state.
    4. Same — Occupancy.
    Plaintiff’s witness, who was but nine years of age in 1836, testified that there were two piers, running down to below low water mark, built of stone, one 100 feet in length running out to a big rock and about fifteen feet wide: the other fifty or sixty feet out and six to eight feet wide, “old, ruinous, broken down stone piles.” Other witnesses described them as used for a line fence and to aid in landing boats and for fishing. Held, that there was no actual individual occupancy of the tract of land under water at the time of the delivery of the comptroller’s deed, and that said deed became operative as a grant by the state without further proceedings on the part of the grantee.
    5. Same — Adverse possession.
    Appellant’s grantor 0. in 1861, built two marine railways, extending into the water about 200 feet and capable of hauling up a vessel of 150 tons. In 1863, 0. procured a patent for the land under water upon which the railway had been erected and in 1865 built a wharf 30 x 100 feet at the foot of the street. Held, that there was no permanent appropriation of the soil by C.
    6. Same.
    While the fee was conveyed, yet there, was reserved to the public and to the upland owners the right to use the premises for the purposes of fishing, navigation, anchorage and access, and the rights granted to Palmer were similar in terms, Held that until the land has been actually appropriated and applied to the purposes of commerce, or for the beneficial use of the owner by the erection of docks and other structures thereon, the same measure of enjoyment of the premises were secured to the people as they had been entitled to before the conveyance.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment in favor of plaintiff.

      George A. Black, for app’lt; Walter D. Edmonds and John Hunter, Jr., for resp’ts.

       Modifying and affirming, 45 St. Rep., 41.

   Maynard, J.

The plaintiff and the defendant John Hunter have recovered in ejectment from the appellant the possession of a strip of land under water adjacent to Minnefords, or City-island, in Long Island sound, extending into the sound 400 feet at right angles to ordinary high water-mark. The premises are a part of a tract of land under water of the same width, comprising about 145 acres, completely surrounding the island, and described in letters patent issued to Benjamin Palmer, May 27. 1763, in the name of the crown of Great Britain, by Robert Monckton, captain-general and governor-in-chief of the province of Hew York. The respondents’ title and right of recovery depend, in the first instance, upon the operation and effect of this grant, the habendum clause of which provides . that the lands shall be held by Palmer in free and common socage, as of the manor of East Greenwich, in the county of Kent, yielding, rendering and paying therefor yearly, and every year forever, to the king of Great Britain, at his custom house in Hew York city, to his collector, or receiver-general, there for the‘time being on Lady Day, the annual rent of five shillings sterling, in lieu and stead of all other rents, services, dues, duties and demands whatsoever for the premises granted, and every part and parcel thereof; and also upon the validity of a comptroller’s deed of the same, executed in 1836 to the devisor of the respondents under proceedings had by the authority of the state for a forfeiture of the patent for non-payment of the quit-rents.

Many objections are urged against this recovery by the appellant’s counsel, with great learning and ability, which demand the-most serious attention, and which we will consider in the order in which they arise in the development of the respondents’ title. First. It is insisted that the royal grant to Palmer is overreached by another patent from the crown, issued in 1666 to Thomas Pell and confirmed in 1687 to his nephew John Pell, creating the manor of Pelham, comprising a large territory upon the mainland opposite Minneford island, and including the island, and by virtue of which it is claimed that the title to the land under water about the island became vested in the patentee. It mpst be admitted that if the patent to Pell was an ordinary conveyance, even from the sovereign power, it would not extend beyond high-water mark, and that lands below that point would not pass by the deed, unless actually included in the expressed metes and bounds of the grant. Rogers v. Jones, 1 Wend., 237; Gould v. James, 6 Cow., 369; Cheney v. Guptill, 2 Hannay, N. B., 379; Trustees of Brookhaven v. Strong, 60 N. Y., 56; Roe v. Strong, 107 id., 358; 12 St. Rep., 56. The descriptive part of the instrument is limited to the mainland and the islands in the sound opposite. It is a conveyance of a tract upon the mainland bounded on the south by Long Island sound, with all the islands in the sound not previously granted or disposed of,” “ lying before the tract upon the mainland,” which extends inland eight English miles, with the same breadth in the rear “as it is along by the sound.” The burden of proof is upon those who claim below high water mark, and it has been held that a private grant, which included an arm of the sea with all islands, ponds, ways, waters, water courses, havens and ports, was insufficient at common law to convey the ■soil between high and low water mark. Gould on Wat., 69; East Haven v. Hemingway, 7 Conn., 186, 200; Middletown v. Sage, 8 id., 221; Jackson v. Porter, 1 Paine C. C., 457; Com. v. Roxbury, 9 Gray, 457, 478, 493.

It is true that the patent to Pell was also a grant of a manorial franchise, with administrative and judicial powers, such as the establishment of a court leet and a court baron, and the learned counsel, whose brief is specially devoted to this point, takes the ground that the conveyance must be regarded as a public grant, which includes within the scope of its operation all the lands under water, to which the jurisdiction of the manor extended. In some measure the right of local self-government was given, and it was declared in the deed that the lands and premises conveyed should forever thereafter, “ in all cases, things and matters, be deemed, reputed, taken and held as an absolute, intyre, infranchised towneshipp, manner and place of itselfe in this government,” and that it should hold and enjoy the same privileges and immunities as any town within the colony. This bestowal of political rights and powers did not, however, enlarge the property rights of the patentee. They were franchises of a public character to be held and exercised by him as the representative of the crown or of the colonial government. It may be admitted that civil and criminal processes issued by him might be lawfully executed upon the adjacent waters, but the proprietorship of the soil under the water would not follow as an incident of this power. The right of jurisdiction and the right of property must not be confounded. The former could be restricted or even abrogated by the authority which granted it and became subject to the control of the state upon the adoption of the. first constitution; the latter. was a matter of private ownership, of which the proprietor could not be divested, except by his own act or by due process of law.

The case of Martin v. Waddell, 16 Peters, 369, is cited at great length by counsel, but we think it is destructive of the appellant’s claim in this respect. It involved the construction of the grant made by Charles 2nd to the Duke of York, by means of which authority was given to establish a colonial government over a vast extent of territory bordering upon the sea coast It was there held that the patentee became vested with the title of the lands under water; not, however, in his private right, but as the representative of the crown, and as apart of the royal prerogatives, or jura regalia, which it was presumed he would administer for the public good. While these colonial •charters were in the nature of grants, and were conferred by the king as proprietor, yet as they respectively created governments, they were not construed as his other grants were, that is, as excluding the adjacent waters, but as including them, and thus the government of the respective colonies had ample authority to alter the established law with regard to their tide waters, or to .grant an exclusive property therein, at their discretion. Angelí on Tid. Wat., 37, 38. The different rule of construction to be applied in the two classes of cases is defined with great clearness ■and emphasis by Oh. J. Taney.

The grant is to be applied with strictness where it is the gift of some prerogative right to be held by the citizen as a franchise, and which becomes private property in his hands. It will not be presumed that the sovereign power intended to part with any of. its prerogatives, or with any portion of the public domain, unless ■clear and express words are used to denote the intention. But colonial charters were designed to be the instruments upon which the institutions of a great political community were to be founded; and their provisions must be liberally interpreted whenever necessary to accomplish the purpose of their creation.

There was no departure from these principles of construction in Trustees of Brookhaven v. Strong, 60 N. Y., 59, and the other cases involving the jurisdiction of the Long Island towns over the adjacent tide waters, to which our attention has been called. In the Broolchaven case, the right of the town to a portion of the waters of the Great South Bay, and the lands thereunder, was upheld because they were expressly included within the boundaries of the grant, and their control was a part of the royal prerogatives conferred, and the authority of the town over them bad been recognized by both colonial and state legislation.

It must, therefore, be held, we think, that the crown did not part with the title to these lands when the manor of Pelham was created, and that it became vested in Palmer by the grant to him in 1763.

Second. The patent to Palmer was liable to forfeiture for a failure to pay the quit-rent reserved; and the several acts of the legislature authorizing the sale of the lands because the rent was in arrear were sufficient to terminate the estate of the patentee, and reinvest the sovereign with the original title, notwithstanding the grant, the king still had the reversion, now called the escheat, and there was the obligation of fealty on the part of the grantee, which, if broken, would also cause the estate to revert, and in all such cases, if rent was reserved, it became a rent service, and the estate granted a qualified or conditional fee. In the feudal economy, rent had a two-fold quality.

It was regarded as something issuing out of the land, as a compensation for the possession ; and also as an acknowledgment by the tenant to the lord of his fealty or tenure. A quit-rent was so called because the tenant thereby went quit and free of all other services. 1 Woodfall on L. and T., 375, 6, 7. In case of a rent service, its payment was a condition subsequent implied in law, and essential to be observed, in order to insure the continuance of the grant After the enactment of the statute of quia emptores in the 18 of Edward I, ho such condition would be implied in a grant in fee between individuals. Every freeman might then sell his lands at pleasure; the system of subinfeudation was destroyed, and feudal restraints upon alienation abolished. What would have before been regarded as a rent service, because of the implied obligation to render it, would in subsequent grants become a rent charge or a rent seek, and a failure to pay would not of itself work a forfeiture of the estate. But as the king is not bound unless the statute is made by express terms to include him, the tenure created by royal grants was not affected by this change in the law; and every conveyance emanating from the crown, reserving rent, still created a rent service and involved the possibility of forfeiture. For a breach of the condition, the king might by inquisition have the estate of the tenant declared at an end, resume possession, and his original seizin would be restored unaffected by the previous demise.

The patent to Palmer was, therefore, burdened with this condition, and the interest of the crown in the lands granted with the right to the rents reserved, and to- re-enter for non-payment, became vested at the Eevolution in the people of the state, who it is declared in the constitutions of 1777 and 1821 have succeeded to all the l’ents, prerogatives, privileges, forfeitures, debts, dues, duties and services, formerly belonging to the parent government, with respect to any real property within the jurisdiction of the state. Thereafter the people, in their sovereign- capacity, were the lord paramount; and had authority to terminate the grant to Palmer for failure to discharge the rent service imposed by it. The state was not restricted in the choice of remedies, if it sought to avail itself of the grantee’s delinquency, so long as the course pursued clearly evinced an intention to reassert title and resume possession. The mode in which it should be done was subject to the legislative will. It might be the result of an authorized judicial investigation, or by taking possession directly under the authority of the government, without any preliminary proceeding. A legislative act directing the appropriation of the land, or that it be offered for sale or settlement, or any other legislative assertion of ownership, is the equivalent of an inquest of office at common law, finding the fact of forfeiture, and adjudging' the restoration of the estate on that ground. This was substantially the rule laid down by Nelson, J., in U. S. v. Repentigny, 5 Wall., 267, in the case of a grant by the French crown, where the federal government had re-entered for condition broken, and reiterated in many subsequent cases. Schulenberg v. Harriman, 21 Wall., 44; Van Wyck v. Knevals, 106 U. S., 368; St. Louis, etc., R. R. Co. v. McGee, 115 id., 469; Bybee v. Oregon & Cal. R. Co., 139 id., 675.

By chapter 222 of the Laws of 1819 the comptroller was directed, as soon thereafter as might be practical, to advertise and sell all lands chargeable with quit-rents, upon which the rent might be in arrear, on some day to be named by him not less than twelve months from the date of notice, and if the land sold should remain unredeemed for two years after the sale, to convey the same to the purchaser by deed, under his hand and seal of office, and witnessed by the deputy comptroller.

By various supplemental statutes, the sale was postponed until the first Tuesday in March, 1826, when, by chapter '251 of the Laws of 1825, the comptroller was directed to commence the sale, having previously given notice thereof in at least one public newspaper in the county where the lands were situated, and to sell only for such sums as the owners were required by law to pay as commutation for the rents ■ reserved, which, by the act of 1824, chapter 225, was fixed at $2.50 for each shilling, if paid before May 3, 1825, and with an addition of ten per cent if paid thereafter. Pursuant to this authority, the lands described in the patent to Palmer were sold by the comptroller in 1826, and bid off by Tennis Van Yechten, and a certificate of sale issued to him by the comptroller. Yan Yechten assigned his bid and certificate to Elias D. Hunter, the respondent’s devisor, to whom the comptroller executed a deed in due form on April 5, 1836, The legislative purpose, as indicated in these enactments, to enforce a forfeiture and resume the possession and control of the estate granted to Palmer is, we think, too clear and certain to admit of question. This purpose was effectually accomplished by the proceedings of the comptroller taken in conformity therewith. We do not hold that a mere assertion by the legislature of a forfeiture for condition broken will conclude the patentee, or those in privity of estate with him, from showing that he was not in default, and that no rent was, in fact, due, and that, therefore, there could have been no forfeiture legally enforceable, but such a claim or defense can only be available to those deriving title under the patent, and cannot inure to the benefit of strangers, to the title. It will be presumed that the sovereign authority did not act without knowledge or proof of the existence of a cause of forfeiture, and, until overthrown, this presumption will be sufficient to support their action.

Third. The comptroller’s deed to Hunter established, prima facie, the existence of the jurisdictional facts authorizing a sale of the lands. It recited a compliance with all of the provisions of the law upon the subject, and being regular and valid upon its face extrinsic evidence was not required in order to render it admissible as the act of the state. A deed by a public officer in behalf of a state is the deed of the state, although the officer is the nominal party. Gerard on Titles (3d ed.), p. 18; Sheets v. Selden, 2 Wall., 177. The rule is firmly established that the issuing of a patent by the officers of a state, who have authority to issue it upon compliance with certain conditions, is always presumptive evidence of itself that the previous proceedings have been regular, and that all the prescribed preliminary steps have been taken; and the recitals in it are evidence against one who claims under the original owner by a subsequent conveyance, or does not pretend to claim under him at all, and the grant cannot be impeached collaterally in a court of law upon the trial of an ejectment. 3 Wash. on R. P. (5th ed.), p. 205; People v. Mauran, 5 Den., 389; People v. Livingston, 8 Barb., 277; Steiner v. Coxe, 4 Pa. St., 28; Hill v. Miller, 36 Mo., 182; U. S. v. Arredonda, 6 Pet., 691; Bagnell v. Broderick, 13 id., 436; E. G. Blakeslee Mfg. Co. v. Blakeslee, 129 N. Y., 155, 160; 41 St. Rep., 178.

It was said, by the Federal supreme court in the Arredondo case, which was a Spanish grant, p. 727, that “ the public acts of public officers, purporting to be executed in an official capacity, and by public authority, shall not "be presumed to be an usurped but a legitimate authority, previously given or subsequently ratified. If it was not a legal presumption that public and responsible officers, claiming and exercising the right of disposing of the public domain, did it by the order and consent of the government in whose name the acts were done, the confusion and uncertainty of titles and possessions would be infinite in this country.”

The rule which governs where the title rests upon a tax sale has no application. In such cases the state proceeds in a summary way to seize and appropriate the property of the citizen in invitum, and the sale and conveyance are but steps in the proceeding, which must be shown to have been duly instituted and regularly prosecuted, or the attempted confiscation will fail, unless there is some statute which makes the deed presumptive or conclusive evidence of regularity. In the present case the state was engaged in the sale of its own lands. It was not restricted in the selection of the mode of procedure. The requirements which it imposed were either for its own protection, or an act of grace to the patentee, to afford him an opportunity to redeem from the forfeiture, which the state could at its option make absolute. This distinction has been repeatedly pointed out.

In Boardman v. Lessees of Read and Ford et al., 6 Pet., 342, it was said by McLean, J., that “where an individual claims land under a tax sale, he must show that the substantial requisites of the law have been observed ; but this is never necessary when the claim rests on a patent from the commonwealth.”

In the People v. Mauran, supra, which like the case at bar was ejectment on a grant of lands under water, McKissock, J., said : " The principles governing here have no analogy to the rules applicable to the cases to which we were referred on the argument, such as purchases under sales for taxes and the like.”

Fourth. The 22d section of the act of 1819 provided that if, at the time of the conveyance, the lands were in the actual possession and occupancy of any person, the purchaser shall serve upon the occupant a written notice of the sale and conveyance, stating the amount of the consideration, and that unless paid, with fifty per cent, added, into the state treasury for the benefit of the purchaser within six months' from the service of the notice, the conveyance will become absolute, and the occupant and all others interested in the lands be forever thereafter barred of all right or title to the same; and that it should be necessary for the purchaser, in order to complete his title, to show by due proof that such notice had been given, and by the certificate of the comptroller that payment had not been made as required in the notice. It is insisted that these premises were actually occupied in 1836, when the deed to Elias D. Hunter was executed, and that in the absence of proof that the required notice was given the plaintiff’s title is fatally defective. The evidence in regard to occupancy is substantially undisputed, and hence it becomes a question of law whether it was sufficient, to bring the case within the provisions of the statute requiring notice. The testimony of the principal witness for the appellant, who was but nine years of age in 1836, was to the effect that there were two piers, one on the southwest, and the other on the west end of the island, both running down to below low water mark, built of stone, one about one hundred feet in length running out to a big rock, and about fifteen feet wide, and the other extending fifty or sixty feet out, and from six to eight*feet wide. The father of the witness owned the upland on that part of- the island, but he did not build the docks or keep them in repair, and the witness states that, “ They were quite old, ruinous, broken down stone piles,” and that the larger one was evidently built for the purpose of reaching the big rock, so that the people could walk off to the rock and fish there. Another witness for the appellant states that these stone piers, or jetties as he calls them, were not built by his father, who was the occupant of the upland, and he did not know who built them, or what they were built for; that one of them at least, which was not double, was used as the line fence between adjoining properties, and to keep the cattle from escaping. Other witnesses describe the jetties as water fences primarily designed to restrain the cattle, but, also, used to aid in the landing of boats, and for convenient fishing.

These structures do not seem to have been claimed or used exclusively by any individual proprietor, but to have been open to public use. It is quite plain that, in view of these conceded facts, there was no actual individual occupancy of the tract of land under water, or of any material portion of it, at the time of the delivery of the comptroller’s deed, and that the deed then became completely operative as a grant by the state, without further proceedings on the part of the grantee. Smith v. Sanger, 4 N. Y., 577; Miller v. L. I. R. R. 71 id., 385; Roberts v. Baumgarten, 110 id., 385; 18 St. Rep., 162; Roe v. Strong, 107 id., 350; 12 St. Rep., 56; McFarlane v. Kerr, 10 Bosw., 249; Drake v. Curtis, 1 Cush., 411. In McFarlane v. Kerr, the owner of the upland had continued his boundary fences to low-water mark, to prevent cattle passing around them, and had built a bulkhead and filled in with earth a small portion of the land between high and low-water mark, and had cut sedge thereon, and it was held that this was not such an occupation of the land as would support a defense of adverse possession. Yet an adverse holding may be upheld in certain cases where there is only a constructive possession of part of the premises, but the statute under consideration requires an actual occupation, in "order to impose upon the purchaser the obligation of serving notice upon the occupant.

Smith v. Sanger was a case of a tax sale, where the law in this respect was substantially the same as in the act of 1819, and where the rule of construction is more strict, and it was held that the clearing, fencing and cultivating for the purposes of husbandry of two and one-half square rods was not such an actual occupation of a lot of two hundred and fifty acres as required the service of the notice.

Here it is shown by the record that, these stone jetties comprised but a few square rods in area out of a tract of one hundred and forty-five acres, and were not claimed or used as private property, and we think it would be a subversion of the purpose of the statute, and a disregard of its letter, as well as its intent, to hold that the land was actually occupied by any person in 1836.

Fifth. The appellant failed to establish the defense of adverse possession. Hpon this branch of the case, the evidence is not conflicting, nor is it of stfch a character that different conclusions of fact can be legitimately drawn from it. The appellant’s grantor, Carll, first went into possession about 1861 of a small portion of the upland bordering upon the shore a short distance of one hundred feet, which was used for a ship yard, and had two structures in connection with it called marine railways, each ten or twelve feet wide, extending into the wáter about 200 feet, partly above and partly below high-water mark, and capable of hauling up a vessel of 150 tons. In 1863 Carll procured, through the commissioners of the land office, a patent for 2 35-100 acres of land under water, upon which the marine railway had been erected, and in 1865 built a wharf thirty by one hundred feet at the foot of a street. No other structures were erected more than twenty years before this action was commenced, and those subsequently added need not be considered. Whether they were kept up or used continuously for twenty years does not clearly appear. The appellant testified that' when he purchased in 1886, they had all rotted down and been washed away, and the existing improvements were all made by him. In any view, it is evident that there was no permanent appropriation of the soil by Carll. The structures were of a temporary character, and designed simply to afford a means of access between the upland and the navigable waters of the sound, and a title in fee will never be implied from user where an easement only will secure the privilege enjoyed. Roe v. Strong, 107 N. Y., 350; 12 St. Rep., 56.

The statute, Code, § 368, provides that in an action of ejectment the person who establishes a legal title • to the premises is presumed to have been possessed thereof within the time required by law, and the occupation of another is deemed to have been under and in subordination to the legal title, and the burden is thus thrown upon the defendant to prove an actual, adverse and exclusive enjoyment of the property in fee during the prescribed period.

From the nature of the property, it is difficult to show such a possession of lands under water as is required to support the presumption of a grant, and we fail to find any case where anything short of a permanent and exclusive occupation of the soil has been regarded as sufficient. Buswell on Lim. & Ad. Poss., § 244; McFarlane v. Kerr, supra.

The use which the appellant’s grantor made of this property, prior to 1871, i's not shown to have been of such a kind as to necessarily require the implication of a grant in fee to render it lawful, and it is, therefore, not available as a defense, when the owner of the legal title seeks to recover the fee.

Sixth. While the respondents have successfully maintained their title to the fee of the land under water, of which the appellant claims to be the owner, we think the judgment must be in one respect modified. What the state conveyed to Hunter was the property which the crown granted to Palmer in 1762. That conveyance contained an important proviso to the effect that it should not extend or be construed to extend, at any time thereafter, to prohibit or in any wise deprive, prejudice, exclude or hinder any person from any right, liberty or privilege which he might lawfully have enjoyed if the grant had not been made, in bringing to and anchoring any ship, boat or vessel on the premises granted, or fishing on the same, nor from any right, liberty or privilege he might have lawfully enjoyed, except upon such parts of the premises as shall at such time or times- be covered with wharfs or other buildings erected thereon by the grantee, his heirs or assigns, and reserving to the sovereign, and to all other persons whatsoever, at all times thereafter, all such powers, liberties, rights and privileges in every part of the premises not covered with wharfs and buildings, as fully as if the grant had not been made. While the fee was conveyed, yet there was reserved to the public and to the upland owners the right to use the premises for the purposes of fishing, navigation, anchorage and access to and from the island until wharfs and buildings had been erected thereon, and to so use all parts of the premises at any time not occupied by such structures.

The property rights granted to Palmer were similar in terms to the grants of land under water by the commissioners of the land office, and contained similar reservations, which secure to the people the same measure of enjoyment of the premises conveyed as they were entitled to before the conveyance, until the land has been actually appropriated and applied to the purposes of commerce, or for the beneficial use of the owner, by the erection of docks and other structures thereon. The deed to Hunter is expressly limited to the lands granted to Palmer, and did not vest in him any rights which the crown had reserved and which passed to the people as the successors of the royal power, and of which they did not become possessed by means of the forfeiture of the grant.

The judgment should, therefore, be modified by inserting therein the proviso and reservation contained in the patent to Palmer, and, as thus modified, affirmed, without costs to either party in this court.

All concur.


source: Caselaw Access Project

author: Peckham, J.

license: Public Domain

text:
    The People ex rel. Andrew D. Baird et al., App’lts, v. The Board of Supervisors of Kings County, Resp’t.

      (Court of Appeals,

      Filed April 11, 1893.)

    1. Election — Apportionment op assembly districts by supervisors.
    Notwithstanding the omission in § 5 of art. 3 of the constitution, as amended in 1874, of the affirmative provision that the assembly districts shall contain, as nearly as may be, an equal number of inhabitants, the section, as a whole, so requires, and the boards of supervisors are still bound to make divisions with reference to the population of the respective assembly districts in their counties.
    2. Same.
    In view of the requirement as to contiguity of territory and the prohibition of a division of towns, perfect equality of population cannot be attained, and the proper discharge of the duty of division implies considerable discretion m the board in ihe formation of the districts; but the discretion exercised must be an honest and fair discretion, arising out of the circumstances of the case and reasonably affecting the exercise of the power of equal division.
    3. Same — Inequality.
    A division into districts varying in population from 31,000 to 102,000, is a plain violation of the constitution.
    4. Same — Mandamus.
    Such a division is not a performance of the duty imposed upon the board, and a mandamus will lie at the suit of any citizen having an interest in the performance of the act to direct the board to come together and perform their duty and make a constitutional division of the county.
    Appeal from order of the supreme court, general term, second department, affirming order denying motion for a writ of peremptory mandamus.

    The relators upon affidavits moved before the special term of the supreme court held in Brooklyn in August, 1892, for a writ of mandamus against the defendants, commanding them to forthwith convene and divide the county of Kings into assembly districts in the manner and form as required and contemplated by the constitution and statutes of the state.
    The affidavits upon which the motion was founded showed, among other facts, that the relators were citizens of the United States, and for more than a year then past had been residents of the city of Brooklyn and of the county of Kings designated as the fifth assembly district as thereinafter set forth, and that each was a^duly qualified elector in that district and had been duly registered and voted at the general election held in November, 1891.
    The moving papers further showed that the defendants on or about the 3rd Tuesday in July, 1892, had filed a certificate in the office of the secretary of state and in that of the county clerk of the county of Kings, as provided for by the terms of the act, chapter 397, of the Laws of 1892, by which certificate it appeared they had divided the county of Kings into eighteen assembly districts as provided for in that act, but it was alleged that the defendants had not further done or performed the obligations imposed upon them by that act, and the constitution of the state, than to make a division as already stated.
    The papers further showed that the fifth assembly district, of •which relators were residents, had been so constituted by the defendants as to contain 102,805 inhabitants and entitled to but one member of assembly, whereas other citizens by action of the defendants were made electors in other assembly districts in Kings county having a much smaller population, one of the districts having only 31,685, and another only 33,416, and that the first, sixth and ninth assembly districts formed and constituted by defendants had an aggregate population of but 99,868, or 2,937 less than the fifth assembly district, in which the relators resided.
    A copy of the certificate filed by the defendants in the office of the secretary of state and in the clerk’s office of Kings county was annexed to the moving papers. The following is an abstract thereof as to districts and population:
    “ 12th ward......................... 31 1st and 2d wards............... 8th ward..................... 9 th ward...................... 24th ward..................... Flatbush and New Utrecht...... 17 th ward. 6 th ward.. 23d and 25th wards..... 26th and 28th wards..... Flatlands and Gravesend. 21st and 27th wards..... 7th, 19th and 20th wards . Population. , 31,685 9th district. . 33,416 1st district. . 34,767 6th district. . 36,258 7th district 37,902 17th district. . 39,921 2d district. . 44,443 3d district . 46,134 13th district . 48,944 4th district. . 50,331 8th district . 50,493 15th district. . 50,616 12th district. . 53,090 11th district. . 58,264 10th district. . 88,555 16th district. 88,703 18th district . 91,751 14th district . 102,805 5th district’6
    There were other allegations in the moving papers relating to certain proceedings of the supervisors and of the common council as to changing boundaries of wards, which it is not necessary to here repeat.
    The population of Kings county appeared by the last census (1892) to have been '995,276, and the total citizen population 868,983.
    The defendants admitted that they filed in the office of the secretary of state, and in that of the clerk of the county of Kings, a certificate provided for by the constitution and the statute, wherein they certified that they had divided the county of Kings into eighteen assembly districts, giving the number, description and population of each district, and that a correct copy thereof was attached to relators’ moving papers. They also admitted that the population of the various wards in the city of Brooklyn and of the various towns in the county of Kings was correctly set forth in a document described as bearing date April 1, 1892, and marked “ Senate document, No. 60,” and that a correct copy thereof, so far as it related to the population of Kings county and the city of Brooklyn, was also attached to the moving papers of the relators. The defendants denied any wrong doing, or any failure to comply with all the provisions of the constitution and the statutes of the state, and they alleged that they had properly and legally divided the county of Kings into the proper number of assembly districts, and they asked that the motion for the writ be denied, -with costs.
    After hearing the respective parties, the special term denied the motion of the relators for the writ of mandamus, but without costs, upon the ground stated in the opinion of the court. An appeal was taken by the relators to the general term of the supreme court, and, after argument, that court affirmed the order denying the motion for the writ. From the order of affirmance the relators have appealed to this court.

      Jesse Johnson, for app’lts; Almet F. Jenks, for resp’t.

       Reversing 48 St. Rep., 342.

   Peckham, J.

The first question which arises on this appeal is as to the proper construction of § 5 of article 3 of the constitution, where it provides for dividing counties by the boards of supervisors into assembly districts in those cases where the county is entitled to more than one member of assembly. The learned judge who heard and decided the case at special term said he did not see how the motion for a mandamus could be granted without writing into the constitution a provision which the people struck out of that instrument in 1874. The general term followed in an affirmance upon substantially the same ground.

It is clear that if the constitution do not in terms, or by necessarv implication, provide for a reasonably equal division by population as near as may be, then the subject of a division by the supervisors, so long as towns are not divided and the districts are composed of convenient and contiguous territory, is left wholly to their absolute and uncontrolled discretion. In such a case as this, where the county is entitled to eighteen members of assembly, there is nothing to control the discretion of the board, even though it should so divide the county that seventeen of the districts should have each a population of a hundred or less, while the balance of the population should be represented by one member of assembly only. This is an extreme case, I know, and such extreme illustrations are not always proof 'of error in a construction which admits their possibility. But long before an extreme case like this should be reached, it is apparent that gross injustice might be practiced in constituting assembly districts, and no redress' would be possible until after the completion of another census, at which time a fresh opportunity for another act of injustice would also arise. While it may be impossible always to prevent injustice in matters of government, yet it is manifestly not the policy of this state to commit irresponsible power to local administrative bodies, and nothing but the plainest language of the constitution ought to be regarded as sufficient to remove such bodies from the supervising power of courts of justice, acting themselves in obedience to the constitution and the law.

It must be admitted that inequality of members in representative districts is not incompatible with most advanced ideas and practices in a republican form of government, as witness the representation of the towns, instead of the people, in some portions of Hew England. That policy of representation by towns has never been adopted or practiced in this state. From the earliest period of our state history, the leading idea has been that the legislature was to directly represent the people, and not the towns or other g'wasj-political corporations contained within the state itself. In cases of representation by towns, the principle was equality among them. Each town was represented, and the number of the population upon such principle was not important. In this state, however, the principle was never adopted. Here we have always had, as a state, the principle of the direct representation of the citizen, and not a representation of him through a corporate body, of which, by his residence, he might happen to be a member. With the exception of some slight property qualification as to the right to vote, the great body of the white citizens of the state have always enjoyed precisely the same rights and have been subject to the same laws. There were no privileged classes among them, and no class which enjoyed special civil rights or immunities, and, therefore, when representatives were to be apportioned among the population represented, the fundamental and natural idea was, in this state, that such apportionment should be equal. It is true that in carrying such idea into practice certain conditions have been made. Under the constitution of 1846, it is provided that a county should have at least one member of assembly. This is not in the slightest degree inconsistent with the theory of citizen instead of corporate representation. There was, with one exception, no county in the state so small as not to furnish a constituency respectable in numbers as compared with the number necessary to entitle it to a representative on the basis of 128 members for the whole state. The exception was the county of Hamilton, which was to elect a member with Fulton county until the population of Hamilton should, according to the ratio, be entitled to a member. This is another proof that it.was the population contained in the county, and not the county itself, which was to be represented.

There was, too, a certain community of interest among the inhabitants of a county. They met together through their representatives in the local legislature constituting the board of supervisors ; courts of justice were held for each county and many officers were elected by county constituencies to perform official duties within the county borders. It was eminently proper that such a constituency should have in any event one representative in the more popular branch of the legislature. It was not the county, however, which was thus represented. It was the inhabitants thereof, and it is certain they obtained this right to at least one representative, not because the county, as a corporation was entitled to it, but because of the reasons above given. In no case was a county to be thereafter erected, unless with a population sufficient to entitle it to one member of assembly. It is impossible to give even a cursory reading to the Constitution of 1846, upon the subject of representation, without seeing that a representation of the people, as nearly as might be in an equal manner, was contemplated and provided for. When, therefore, a county already was or thereafter became entitled to more than one member and a division into two or more assembly districts became necessary, equality of population would -naturally be the basis upon which the division would be made. I say naturally, because the policy of the state, as we have seen, has plainly been in that direction, and as each man or citizen was equal before the law and entitled to the same privileges as any other citizen, it is also plain that the basis of a division would naturally be according to members and thus each citizen would obtain or retain an equal weight in the affairs of the state so far as his civil rights or privileges were concerned. It was, however, provided that, in the division of counties into assembly districts, no town should be divided and the districts should be formed of convenient and contiguous territory.

There is nothing in the provisions of the constitution of 1777 or of 1821 which in any way advances the theory that the counties as such were originally represented in this state. Those constitutions simply provided for representation of electors by county lines, and the members of assembly were to be apportioned among the counties as nearly as might be according to the number of electors which were found in the county. In this way each county contained a proper number of representatives as compared with the number in any other county, and each elector in the county voted for all the members. In this way the privilege was preserved, and no one elector of 'a county had any greater or other right to vote for members than any other elector, and the whole number of electors of the state were as nearly as might be equally represented in the legislature. By the constitution of 1846, the choice of members of assembly by single districts was introduced and provision was made for equality of members in each such district.

Under this provision it is agreed that there was some duty laid upon the boards of supervisors of a county to make the assembly districts as nearly as might be equal in the number of inhabitants. In 1874 the fifth section of the third article of the constitution as adopted in 1846 was recast under the supervision of a constitutional commission, and the language of ¿the section was altered to a considerable extent, and yet the general idea of both sections (with the exception as to persons of color) is substantially the same.

We had occasion in People ex rel. Carter v. Rice, 135 N. Y., 473, 494; 47 St. Rep., 702, to state somewhat in detail that the circumstances attending the termination of the civil war and the abolition of slavery throughout the country furnished reasons for recasting our constitution in relation to the colored citizen and his right to vote and to be counted as part of the population of the state. And it was undoubtedly owing to these circumstances that the language of the fifth section of article third was recast. In the original section of the constitution of 1846 the provision in regard to the equality of the assembly districts stood at the foot of the first paragraph of the section, and it was as follows :

Each assembly district shall contain, as nearly as may be, an equal number of inhabitants, excluding aliens and persons of color not taxed, and shall consist of convenient and contiguous territory ; but no town shall be divided in the formation of assembly districts.”

The amendment of 1874 distributes the provisions of the section in a different order, and as to the division into assembly districts the section now provides that the board of supervisors shall assemble as directed by the legislature “ and divide their respective counties into assembly districts, each of which districts shall consist of convenient and contiguous territory equal to the number of members of assembly to which such counties shall be entitled, and shall cause to be filed in the offices of the secretary of state and the clerks of their respective counties a description of such districts, specifying the number of each district and the population thereof, according to the last preceding enumeration, as near as can be ascertained, and the apportionment and districts shall remain unaltered until another enumeration shall be made as herein provided. Ko town shall be divided in the formation of assembly districts.”

It is now argued that because of the simple omission of the affirmative provision that the assembly districts shall contain, as nearly as may be, an equal number of inhabitants, the whole subject is within the jurisdiction of the supervisors, and that such board is granted absolute, uncontrolled and entire discretion over this matter.

In this view we find ourselves unable to concur. We can perceive no reason for reversing, in the case of counties entitled to more than one member, the general principle upon which representation in the legislature is governed by the constitution of 1846. We recognize the fact already adverted to, that there is in the constitution a special direction to the legislature in so many words, and upon certain conditions not here material, to form the senate districts so that they shall contain, as nearly as may be, an equal number of inhabitants, and there is also a like direction to apportion members of assembly among the several counties of the state as nearly as may be according to their respective inhabitants, and that the direction in specific terms contained ™ the fifth section of article 3, as originally adopted in 1846, to so divide assembly districts as that they shall contain an equal number of inhabitants, is omitted in the section as amended and adopted by the people in 1874. Notwithstanding all this, however, we still think that the language of the amendment does not substantially alter the meaning of the section before the amendment, except in the case of persons of color. By the amendment they are no longer to be excluded from the count in making up the number of inhabitants.

We must bear in mind, when construing the meaning of the section as it now stands, that the policy of the state ever since it has existed as a state has been in the line of a direct representation of inhabitants, as distinguished from their representation through corporations of a quasi political character.

In carrying out this idea of representation by population, we see that specific directions are given the legislature in the constitution, and we can never believe that it was ever the intention of the people that absolute discretion should be confided to an inferior body like the board of supervisors, while the legislature itself was to be bound in set terms to make divisions upon a recognized basis of population. Power to make a division being granted to the legislature, it might be claimed that in the absence of any limitation it would have the power to divide according to its discretion. But in the case of inferior, bodies like boards of supervisors, who have no legislative power excepting what is specifically granted, the power to divide being given, the implication would be strong that it was only a power to divide equally, and if power to divide in the discretion of such a board were claimed, the grant would have to inqlude such power in express terms, for it would not be implied from a general power to divide or from the absence of some express limitation. This difference of construction would arise because of the difference in the nature of the powers of such different bodies as the legislature of this state and the board of supervisors of a county. The one has all legislative power not limited or denied to it by the constitution, while the other has no power whatever except such as is specially granted to it. In regard to a body like the board of supervisors it would depend upon the proper and- reasonable construction to be given the language of the grant of power, rather than upon the absence of some specific language of restraint or limitation. In adverting to the effect of the amendment of 1874, we think some weight is due to the fact that the amendment does not purely consist of an omission of the words that each assembly district snail contain, as nearly as may be, an equal number of inhabitants. The whole section was recast, and the words omitted formed part of the sentence providing for the excluding of aliens and persons of color not taxed. There is no doubt the amendment was, in fact, proposed and adopted in order to do away with the exclusion of persons of color. If, however, the meaning of the section were thereby altered to the extent of abrogating the necessity of dividing assembly districts, as nearly as might be, equally with regard to population, it would be our duty to follow the constitution and to make no merely judicial amendment to it

We do not think this was the effect of the amendment. Upon an examination of the whole section, we think that a construction of it which requires the board of supervisors to divide the assembly districts so that they shall contain, as nearly as may be, an equal number of inhabitants, to be composed of convenient and contiguous territory, and in the formation of which no town shall be divided, is not only authorized but required by the general sense of the language of the section. The section commences with these words: “ The assembly shall consist of one hundred and twenty-eight members, elected for one year. The members of assembly shall be apportioned among the several counties of the state, by the legislature, as nearly as may be, according to the number of their respective inhabitants, excluding aliens, and shall be chosen by single districts.”

Stopping here, the meaning would seem to be reasonably plain. As the members of assembly were to be apportioned among the several counties as nearly as may be according to their population, and were to be chosen by single districts, those districts, in the absence of language making some other provision, would by force of the language actually used be subject to a division upon the principle of equality of population as nearly as might be, so as to conform to the evident intent to be gathered fiom the language thus far contained in the section. This would be, as we think, the natural and plain implication, and in the absence of any other language qualifying or affecting it, we think it would be just as effectual as if stated in so many words. Considering the manner in which our state has provided for representation in the past and its continued adherence to' the plan of representation by population, this implication becomes still stronger and clearer. The reading of the rest of the article confirms "this view and renders the implication a necessity. The assembly districts are to remain as then (1874) organized until after the census of 1875, when the legislature is to apportion the members of assembly in the manner already staled, and the board of supervisors shall assemble on a day named by the legislature, and shall then “ divide their respective counties into assembly districts, each of which districts shall consist of convenient and contiguous territory equal to the number of members of assembly to which such counties shall be entitled,” etc.

Starting with the view that up to the point just quoted the article in effect implies that these districts are to be, as nearly as may be, equal, we find here no word which gives color for a different conclusion. All its inhabitants having equal rights, a direction to divide a county into the number of districts to which it was entitled, an equal division as to population would be implied from the prior language of the constitution, and in order to carry out a perfectly well known and recognized policy of the state.

It would require special language granting, in terms, the right to unequally divide the districts before we should feel that, in giving effect to such a division, we did not run counter to the true meaning of the constitution. In addition to this, however, the-section provides for the making and filing by the board of supervisors of a description of the districts made by the board, specifying its number and the population thereof, according to the last preceding enumeration as near as can be ascertained, and, as thus constituted, they are to remain unaltered until another enumeration shall be made, and no town is to be divided in the formation of a district. This last condition might and probably would have the effect of preventing the equality in inhabitants which might otherwise be reached in these districts. There is nothing in the language thus far quoted which clothes the board with the right to divide these districts without the slightest reference to the question of population. And it would seem that, by the provision for filing a description of the districts as divided, with a statement of the population of each district, an official and conclusive species of evidence were furnished by which to determine how, in fact, the constitutional mandate had been complied with.' The opinion of the learned judges of the supreme court of Massachusetts, contained in a communication addressed by them to the house of representatives of that state,'and reported in 10 Gray, 613, has been referred to as an authority for the absolute discretion of the body forming the districts. The opinion does not include such a case as this. The question there was whether the House could question the election and return of members from districts divided by the proper authority, and it was stated that it could not and that the action of the board making the division was conclusive.

The question there raised would exist in this state if'the assembly should question the conclusive character of a division made by the supervisors and under which members were elected to the assembly, by questioning the proper election and qualification of a member so elected. A very different question indeed from that under consideration, and one which if before us might readily be decided as the learned judges of Massachusetts decided it. Persons elected under an apportionment such as appears in this case, and while such apportionment stands unvacated, we have no doubt are legally elected members of the assembly and as such entitled to participate in all the business of that body. In any event the house is the judge of the election returns and qualifications of its own members, and those whom the house receives as duly elected must be regarded as rightfully elected and entitled to take part in the business of the house.

We construe the present language of the section, for the reasons already given, as calling for a division into districts as nearly as may be of an equal number of inhabitants, regard being had to other provisions of the section.

In redrawing the section for the purpose of making a different provision in regard to persons of color not taxed, the special provision as to the division of districts so that they should contain as nearly as may be an equal number of inhabitants was omitted because, as we have no doubt, it was thought to be unnecessary in consideration of the language of the rest of the section, and we agree in that conclusion. The omission remains, therefore, wholly without significance.

We are unable to believe that there was any intention by the adoption of the amendment of 1874, to inaugurate either & new theory of representation by counties or to leave an uncontrolled discretion in these local boards to form assembly districts as they should choose, so long as they did not divide a town and constituted a district of convenient and contiguous territory. We do not think this is the effect of die amendment as adopted.

What the people really struck out in 1874 was the necessity of excluding from the number of inhabitants persons of color not taxed when forming assembly districts, and the omission of the language only affected that question. We have no doubt that the boards of supervisors in the different counties are still bound to make divisions with reference to the question of population of the respective assembly districts in their counties.

Second. Assuming that we have reached a correct conclusion as to the duty of the board to divide the county into assembly districts in the manner just stated, the true meaning of the section still remains somewhat of a problem. It is very plain that a division simply by an arithmetical process is not contemplated, because the injunction to refrain from dividing a town would in many cases render such' a process wholly impracticable. The further injunction, to make the districts of convenient and contiguous territory, might render it still more impracticable to divide with relation merely to inhabitancy. The main duty which is imposed upon the board is to make the division equal as to population so far as that is attainable, while making each district of convenient and contiguous territory and keeping the town undivided. Perfect equality of population cannot, under these conditions, be attained. The proper discharge of the duty of division by the board implies considerable discretion in the formation of the various districts. The discretion exercised must be an honest and a fair discretion, arising out of the circumstances of the case, and reasonably affecting the exercise of the power of equal division.

Before examining any division, it would be a prima facie .presumption that the division actually made in any case was a proper one, and a full compliance with the duty imposed upon the board which made it. This would be in accordance with the presumption in favor of the due and proper discharge of official duty. ISTor would the mere fact that the districts were to some extent unequal in population necessarily rebut this presumption. The necessity of considering the other facts provided for by the section and already alluded to might reasonably account for many and even somewhat large aberrations from the initial point of equal representation. While it is impossible, in the nature of the case, to accurately describe and closely limit the amount of deviation from an equal representation that the practical working of the constitution may in this respect permit, it is, on the other hand, sometimes quite possible to say of a particular example that it does or does not violate the constitutional mandate.

We have no trouble whatever in detecting the difference between noon and midnight, but the exact line of separation between the dusk of the evening and the darkness of advancing night is not so easily drawn.

A question of somewhat similar nature was before us in Peeple ex rel. Carter v. Rice, cited supra. The question there related to the amount of discretion reposed in the legislature in the creation of senate districts and in the apportioning of members of assembly among the several Counties. It was there stated that it was not intended to intimate by the decision then made that in no-case could the action of the legislature be reviewed by the courts, and that cases might easily be imagined where the action of the-legislature would be so gross a violation of the constitution that it was plain that instrument had been entirely lost sight of or intentional disregard of its commands both in the letter and in the spirit had been indulged in. If there were an abuse of the discretion so as to clearly show an open and intended violation of the constitution, we held in that case that the courts might interfere. We did hold that the facts as presented contained no such -features, and although there was no mathematical division, the court refused to interfere w'ith the discretion that had actually been exercised by the legislature.

We think in the case of assembly districts the duty is at least as plain which governs the boards of supervisors as that which rests upon the legislature in the case mentioned. It is not every departure from equality in the number of inhabitants that can be interfered with, or that ought to be the subject of review by the courts. „

If the division with reference to the facts of convenience and contiguity of territory, the indivisibility of the town and the number of inhabitants in the various districts as compared with each other, do not lead most inevitably to the belief that the board has intentionally disregarded the constitutional provision, we think in such case that its action should be upheld.

We do pot intend by this decision to hold that every trifling deviation from equality of population would justify or warrant an application to a court for redress. Such, we think, is not the meaning of the provision. It must be a grave, palpable and unreasonable deviation from the standard, so that when the facts are presented argument would not be necessary to convince a fair man that very great and wholly unnecessary inequality has been intentionally provided for. This is as near an exact definition of the meaning-of this section in this regard as I am able to now give.

Third. Tried by the rule just stated, we have no difficulty in coming to the conclusion that the action of the defendants in dividing Kings county into assembly districts cannot be regarded as a compliance with the Constitution.

It is unnecessary to refer to the division in detail. It is plain that if the constitutional provision were not in this case intentionally- ignored, it was at least not regarded as an existing rule requiring attention and obedience. No such division could have been made by any public body that intended to be guided by the commands of the constitution in this particular. The variation in districts from a population of 31,000 to that of 102,000 is entirely too great to sustain the claim, if it were made, that there was any attempt to comply with the constitution. Between these two extremes there are many other and great variations. The whole division is so plainly in violation of the constitution as here interpreted that we feel justified in the belief that no body of public officials would have made such a division if they had thought that in respect to population there was any constitutional provision which would bind their action. They evidently proceeded upon a mistaken theory as to their power, and so thinking, their action is explicable upon grounds consistent with their integrity and intention to perform a public duty.

Fourth. It is urged that even if the defendants were bound to divide the assembly districts with reference to the question of population, yet as they have met and performed the duty of division and have filed their certificate, such action is in its nature judicial, or at any rate it is one which requires large discretion in its performance, and for these reasons it cannot be reviewed by the courts. Undoubtedly there is a discretion to be exercised in the division by the board, and with the exercise thereof this court has as little inclination as right to interfere. By the action already taken the relators in these proceedings have been aggrieved. It is true they have suffered no more than any other citizen and resident in the fifth assembly district. But the interest of the relators in the question at issue, although common to all the residents of that district, is, nevertheless, sufficient to enable them to have a standing in court and to invoke its aid in this behalf. Mandamus is the only remedy in such a case. Where the thing to be done does not rest in discretion and is to be performed by a public body or officer, and the act is of a public nature, in the execution of which the public is interested, its performance may be compelled by mandamus sued out upon the relation of any citizen of the community having an interest in the performance of the act. This has been the law of this state for many years. People v. Halsey, 37 N. Y., 344. The thing to be done in this case is to make a valid division of the county of Kings into assembly districts. All the citizens are interested in the performance of that duty. Its performance does not involve any discretion. It must be done. The manner of its performance is, to a large extent, discretionary. . The court only interferes to compel the performance. In this case, we hold that the defendants have failed thus far to perform their duty to legally divide the county of Kings into eighteen assembly districts. That duty still rests upon them just the same as if they had never attempted its performance. What they have done is utterly void and of no effect. We can only interfere so far as to direct them to come together and perform their duty, and make a constitutional division of their county.

We are not impressed with the correctness of the claim made by the counsel for the appellants, that the present division is void because of the alleged division of towns. They claim that certain wards in the city of Brooklyn must still be regarded as towns in the county of Kings, and cannot be divided. We do not think, in this respect, there is just ground for the claim, yet, inasmuch as the question need not now be decided, because we hold the division void on other grounds, we do not further discuss the subject

The orders of the general and special' terms must be reversed, and the motion for.a mandamus must be granted, without costs against the defendants. The terms of the order, if not agreed upon, will be settled by this court upon motion.

Orders reversed and motion granted.

All concur.


author: Andrews, Ch. J.

text:
    The People ex rel. The Pennsylvania Railroad Co., Resp’t, v. Edward Wemple, Comptroller, App’lt.

      (Court of Appeals,

      Filed April 11, 1893.)

    Taxes — Foreign corporations carrying on interstate commerce.
    A foreign corporation engaged in this state exclusively in the business of interstate commerce is not liable to taxation under chap. 542, Laws 1880. As to §uch corporation such tax would be void as a regulation of commerce, the tax being one upon franchises or business and not upon property.
    Appeal from order of the supreme court, general term, third department, reversing assessment and order of the comptroller.

      Charles F. Tabor, for app’lt; E. Randolph Robinson, for resp’t.
   Andrews, Ch. J.

This is an appeal by the comptroller of the state of New York from an order of the general term of the third department, reversing the determination of the comptroller assessing a tax on the relator for the sum of $40,886.89, under the alleged authority of chap. 542 of the Laws of 1880, and the acts supplementary thereto and amendatory thereof. The relator is a Pennsylvania corporation, operating a line of railroad for the transportation of freight and passengers, extending through the state of New Jersey into other states of the Union. No part of its road is within the state of New York. But it operates in connection with its road a ferry from the New Jersey shore across the Hudson river to the city of New York, where it has terminal facilities consisting of wharves, piers and docks, and buildings connected therewith, used in the transaction of the business of delivering freight and passengers carried over its line to that city, and of receiving freight and passengers to be carried from the city into New Jersey and other states reached by its system of roads.

The only transportation over New York territory carried on by the relator is over that part of the Hudson river within the terminal boundaries of the state, by means of its ferry boats. It collects in the city of New York money due for transportation to that point and for transportation from that city, and there makes contracts for transportation of freight and passengers over its lines and issues and sells passenger tickets. It employs in the city of New York a large number of agents, clerks and laborers in the prosecution of its business. It is engaged in no business in that city except such as relates to the transportation of freight and passengers over its lines.

The question of the validity of the tax in question, irrespective of alleged errors in the computation, depends upon the point whether the scheme of taxation enacted by chapter 542 of the Laws of 1880, entitled “An act to provide for raising taxes for the use of the state upon certain corporations, joint stock companies and associations,” and its amendments, _ can be enforced against the relator. It is claimed in behalf of the relator that, as applied to it, the tax is a tax upon interstate commerce, and that the act under which it is imposed is, as to the relator, if embraced within its purview, an attempted regulation by the state of interstate commerce, which appertains exclusively to congress under article 1, § 8, clause 3 of the federal constitution. That a tax imposed by a state may constitute a regulation of commerc'e was decided in the case of Brown v. Maryland, 12 Wheat., 419, and has been frequently decided in subsequent cases. There has been much difficulty in the federal courts in determining what constitutes interstate commerce, and what acts of the state are to be deemed regulations thereof. But there is no question, at least at this time, that the business of the relator comes within the description of “ commerce among the states ” in the commerce clause of the federal constitution. Miller, J., Fargo v. Michigan, 121 U. S., 241; Pickard v. Pullman South. Car Co., 117 id., 34.

We do not understand it to be contended by the learned counsel for the state that if the act of 1880, as applied to the relator, is a regulation of commerce, the tax in question can be sustained.

In determining the question now presented, two propositions must be deemed conclusively established. One is that the business in which the relator was engaged in this state was exclusively that of interstate commerce. Whatever it did here was incident to and in aid of the business of interstate transportation. Interstate transportation was not a part of its business only in this state. It performed the work of an interior carrier in Mew Jersey and other states, but in this state its business was that of interstate commerce exclusively. There may, therefore, be eliminated from the discussion the question which would arise in the case of a foreign corporation conducting within this state both the business of strictly interior transportation and that of interstate carrier to points within and from points without the state. We do not intend to be understood as determining whether, in that case, the state might not, under the act of 1880, lawfully impose upon such a corporation, in common with all other corporations, domestic and foreign, doing business here, a business tax based upon its capital employed in the state, which, under the amendment of 1885, is now the basis of taxation of corporations liable to taxation under the act of 1880. Chap. 501, Laws of 1885.

There would seem to be no question that domestic corporations, engaged in both state and interstate commerce, may lawfully be subjected by the state to a franchise tax, measured by its whole capital or business, or in any other way in the discretion of the legislature, without taking notice of thé part of its business arising from interstate commerce, provided no hostile discrimination is made .against such part. Nor would there seem to be any valid reason why a foreign corporation, engaged both in thé business of state and interstate transportation in this state, should not be subject to taxation in common with domestic corporations. See People ex rel. etc., v. Wemple, 131 N.Y., 64; 42 St. Rep., 632; Woodruff v. Parham, 8 Wall., 123; Osborne v. Mobile, 16 id., 479.

The second point which must be deemed to be established is that the tax imposed upon corporations under the act of 1880, as amended by chapter 361 of the Laws of 1881, is a tax upon the “ corporate franchise or business,” and is not a tax upon property. It is made a tax upon the corporate franchise or business by the express language of the enactment, and it was upon the ground that it was a tax on corporate franchises or business, and not upon property, that this court, in the case of People v. Home Ins. Co., 92 N. Y., 345, sustained the tax assessed against the insurance company in that case, measured by a percentage on its whole capital, part of which was invested in United States bonds. The court assented to the proposition that, if the tax was a property tax, the amount invested in United States securities should have been deducted in ascertaining the amount of its taxable capital. The then learned chief judge, in stating the question, said: “It thus appears that the only question presented for our consideration.under this branch of the appeal is whether the tax in question was, in fact, levied upon the franchises of the defendant, which would be undeniably lawful, or upon the property of the corporation invested in the securities of the general government, which would be unlawful," and in conclusion he said: “ It seems conclusively established that the act under which this tax was levied must be held to have imposed a franchise and not a property tax, and that its enactment constituted a lawful exercise of legislative power.” This decision was affirmed on the same ground upon which the decision in this court proceeded, by the supreme court of the United States. 134 U. S., 594. The tax, when imposed on a domestic corporation, is a tax on its corporate franchises; when imposed on a foreign corporation, is a tax on its business; a distinction based on the fact that corporate franchises are only taxable within the jurisdiction which creates them, and where alone they can be said to have a situs. People v. Equitable Trust Co., 96 N. Y., 388.

We come, therefore, to the crucial question of the case; can the ’state of New York tax the relator, a foreign corporation, upon its business carried on in this state, which is exclusively the business of interstate commerce ? The question stated in another form is, may a state tax a foreign corporation, whose business in such state is exclusively that of interstate commerce, for the privilege of transacting that business here, because, as wo have held, this is the essential nature of the tax under the act of 1880. People ex rel., etc. v. Wemple, 131 N. Y., 68; 42 St. Rep., 632. If the tax is a regulation of commerce, and not an exercise of the taxing power of the state, the relator is protected against its imposition under the federal constitution. The power to regulate commerce between the states is vested exclusively in congress, and the fact that congress has not acted confers no powers of state regulation, except as to matters of local interest incidentally affecting foreign or interstate commerce, and where action by the state is permitted under the police power in aid or promotion of commerce, such as the regulation of pilots, wharves, harbors, bridges, etc., and for the protection of the public health. Cooley v. Board of Wardens of Phila., 12 How., U. S., 299; Welton v. State of Missouri, 91 U. S., 282; Brown v. Houston, 114 id., 630. In Cooley v. Board of Wardens of Phila., Mr. Justice Curtis, speaking of this .subject, said: “ Whatever subjects of this power are in their nature national, or admit of only one uniform system or plan of regulation, may justly be said to be of such a nature as to require exclusive regulation by congressand Mr. Justice Field, in Wilton v. State of Missouri, said : “ The fact that congress has not seen fit to prescribe any specific rules to govern interstate commerce does not affect the question. Its inaction on this subject, when considered with reference to its legislation with respect to foreign commerce, is equivalent to a declaration that interstate commerce shall be free and untrammelled."

The state power of taxation extends in general to all property, real or personal^ having an actual situs within the state, irrespective of the residence of the owner. The state may not only tax property within its limits, but the business and occupation of its citizens, and the franchises of domestic corporations ; and when it permits foreign corporations to carry on business in the state, it may subject the privilege to such taxation as it may deem expedient. In short, the power of state taxation is coextensive with the subjects of taxation, and the state may define the subjects, provided only that the property, privilege or right upon which the tax is imposed is within the jurisdiction. The existence of this power is essential to the existence of the state governments. But under our system certain powers have been delegated by the whole people to the general government, some exclusive, and some concurrent with the power of the states, and, in some instances, affirmative restrictions upon the power of the states have been imposed by the federal constitution, and others are implied from affirmative powers vested in the government of the Union. Among these restrictions, express or implied, are restrictions on the taxing power of the states. The states cannot tax the property of the federal government within the jurisdiction, nor the public securities of the United States, nor the instrumentalities through which it exercises its delegated powers. It can levy no tax upon exports or imports, and goods imported from foreign countries and brought within a state cannot be reached by its taxing power while in the hands of the importer in the condition in which they were when imported, unless they have been mingled with the general mass of property therein. These are familiar illustrations of an acknowledged principle.

But conflicts have arisen in respect to the power of state taxation which do not admit of so easy a solution. Indeed in many cases it has been found difficult to draw the line and to determine where, state taxation is excluded under the provisions of the federal constitution. The difficulty of the subject has been acknowledged by the courts, and by no court more frequently than by the supreme court of the United States. It is delicate ground, and as was said by Chief Justice Chase in Osborne v. Mobile, 16 Wall., 479: “It is as important to leave the rightful powers of the state in respect to taxation unimpaired, as to maintain the powers of the federal government in their integrity.” No more fruitful subject of controversy has been presented than the proper construction of the commerce clause in the federal constitution, as connected with the right of the states to impose taxation upon interstate commerce, or rather on the question when a tax is to be regarded a tax on such commerce, because the bald proposition that a state may tax interstate commerce has never probably been asserted by any of the courts of the state. The tax has usually been laid on the business, or franchises, or on the occupation of those engaged in interstate commerce, or on the property employed therein, or on freights, the tonnage of vessels,, or in some form in which it could be plausibly argued that the tax was not a direct tax on the commerce itself.

In deciding the question before us we are bound to follow the adjudications of the supreme court of the United States, as far as they have determined any constitutional principle bearing upon the point in controversy. It has been held in a series of decisions in that court, that while a state tax, which in substance and effect is a direct tax on interstate commerce, constitutes a state regulation of commerce and is the usurpation of a power exclusively vested in congress and, therefore, void, yet that the commerce provision of the federal constitution does not deprive the states of the power to levy a property tax, npon property employed in interstate commerce, having a situs within the jurisdiction, provided no adverse discrimination is made in the imposition of the tax between such property and other property of a similar character. The state may subject to a property tax in common with other property, every description of property, real and personal, having its situs there, although .used or employed exclusively in the business of foreign or interstate commerce. Ships or vessels engaged in foreign or coastwise commerce may be taxed at their home port, and the products of one state carried into another and there held for sale by the original producer may be taxed, even before sale, in the state to which they have been taken.

The courts have given the broadest construction to the power of a state to lay a property tax on property employed in interstate commerce, provided, as before stated, it is subjected to no unjust discrimination. Transportation Co. v. Wheeling, 99 U. S., 273; Brown v. Houston, supra; Pullman car Co. v. Pennsylvania, 141 id., 23. Such taxation, although indirectly affecting interstate commerce, is held not to be a regulation of commerce prohibited by the federal constitution. Strong, J., Slate Tax on Railway Gross Receipts, 15 Wall., 293; Railroad Co. v. Maryland, 21 id., 460.

If the tax imposed on corporations by the act of 1880, and the subsequent statutes amending the same, had been a property tax instead of a tax on franchises. or- business, it would not, as we interpret the decisions of the United States supreme court, have been subject to the objection now made in behalf of the relator, nor could the relator have lawfully resisted its payment. The tax would then have been a tax imposed on the property of the relator actually within this state, and that it was employed in-conducting the operations of interstate commerce would have furnished no claim on constitutional grounds for exemption. But we understand that it is the established doctrine of the federal courts that no state can impose a tax on the business of interstate commerce, whatever may be the guise under which the tax is laid, and that a tax which operates directly as a tax on such business is void as a state regulation of commerce. The general power of a state to tax business pursuits' and callings carried on within the state does not, as is held, extend to the taxation of such pursuits where the business is that of interstate commerce. This question has frequently arisen under state laws imposing a license tax upon agents of firms or corporations of other states, as a condition of being permitted to prosecute within the state exacting the license the business of selling or taking orders for the sale of goods or products to be sent there from the state where the principal resides.

In some cases the statute under consideration discriminated against the agents of foreign principals and the agents of domestic principals, and in others no such discrimination was made. While some of the earlier decisions may seem to conflict with the later ones, the rule of the federal courts established by the recent decisions is, “ that a state law is unconstitutional and void which requires a party to take out a license for carrying on interstate commerce, no matter how specious the pretext may be for imposing it,” and that it is immaterial whether the person from whom the license is exacted is an individual or a foreign corporation. Robbins v. Shelby Taxing District, 120 U. S., 489; Crutcher v. Kentucky, 141 id., 47, and cases cited.

The principle upon which the license cases proceed is that a license tax is a tax on the business of interstate commerce, and being such it is a regulation of commerce, a subject exclusively within the regulating power of congress. There seems to be no proposition more firmly established by the decisions of the United States supreme court than that a tax imposed by a state upon the business of interstate commerce is a tax on such commerce, and is, therefore, void. The difficulty arises in determining whether the tax in a given case is in substance a tax on commerce, or a tax affecting commerce indirectly and incidentally only, in which latter case it is not obnoxious to constitutional objection. Taxation of property employed in interstate commerce affects commerce, because it increases the expense of carrying it on, and the burden ultimately falls on the subjects of commerce, but this as we have said does not remove such property from the taxing power of the state.

So the taxation of the franchises of domestic corporations, part of whose business may be interstate commerce, falls in part upon such commerce, but we do not- understand that this in any respect qualifies the power of the state. Many cases of this kind arise under the law now under consideration, in the taxation of railroads organized under our laws.

It must be assumed that the grant by a state of corporate powers carries with it special and peculiar advantages to the corporation to whom the grant is made, and it is this that justifies the taxation of corporate franchises by the state. But it has been held that the state may not tax the gross receipts of a steamship company incorporated under its laws, engaged in foreign and interstate transportation. Philadelphia & Southern S. S. Co. v. Pennsylvania, 122 U. S., 326. In that case Bradley, J., speaking of the tax, said: “ If intended as a tax on the franchise of doing business, which in this case is the business of transportation in carrying on interstate and foreign commerce, it would be clearly unconstitutional.” This was regarded as a direct tax on commerce, as was the tax on all the freight carried by the Reading Railroad Company, a domestic corporation of the taxing state, which included freight brought from or carried without the state. State Freight Tax, 15 Wall, 232.

But we do not understand that the state may not tax the franchises of all corporations chartered by it, by a uniform and general rule, or that such taxation would be unauthorized as applied to a corporation engaged in interstate commerce. It could not tax the business as a distinct and separate subject of taxation or discriminate against it. The tax against the Pennsylvania Railroad Company, involved in this case, was distinctly a tax on its business, and that business in this state, as we have said, was exclusively interstate commerce. It has been suggested that the tax is upon the privilege it enjoys, as a foreign corporation, of coming into this state and here exercising corporate functions. We are not called upon to determine in this case whether the state,under the general rule that it may exclude foreign corporations from coming here, and that it is by comity alone that such corporations are permitted to exercise corporate franchises outside of the jurisdiction of origin, could lawfully exclude a foreign corporation engaged in interstate commerce from landing its freight or passengers on our shores, or at the wharves in the city of New York, or from there receiving freight or passengers. See Pensacola Tel. Co. v. West. Union Tel. Co., 96 U. S., 1; Paul v. Virginia, 8 Wall., 168; Pembina Mining Co. v. Pennsylvania, 125 U. S., 181; Crutcher v. Kentucky, supra.

It is sufficient for this case to say that the state has not attempted to exclude the relator from doing business in this state, or withdrawn the comity under which it has been permitted to carry on its business here and acquire real and personal estate for the transaction of its business. The relator is lawfully here, and being here it cannot, we think, under the authorities, be lawfully subjected by the state to a tax upon its business of interstate commerce, or for the privilege of conducting its business here. It does not relieve the tax from its objectionable character that the law of 1880 was not aimed at the business of interstate commerce specifically, but applied to all corporations engaged in transportation, nor is it material that the exemption claimed may render taxation unequal as between domestic and foreign corporations.

The same feature existed in several of the cases in which a tax by the state has been held to be void as a regulation of commerce. The answer made by the cases is, that protection of the business of interstate commerce from state taxation exists under the paramount authority of the federal constitution. The cases of Fargo v. Michigan, supra, and Gloucester Ferry Co. v. Pennsylvania, 114 U. S., 196, seem to be conclusive in favor of the relator here. Both were cases of foreign corporations engaged in interstate commerce. In Fargo v. Michigan, the state of Michigan sought, under a state statute, to tax the gross receipts of the corporation. In the Ferry Company case, the state of Pennsylvania, under a statute very similar to the statute of New York, sought to tax the company, a corporation of New Jersey operating a ferry across the Delaware river from the New Jersey shore to Philadelphia. The tax was nominally on the capital of the company. In both cases the tax was held by the court to be void as regulations of commerce. In the Ferry case, the supreme court of Pennsylvania sustained the tax on the ground that the company did business in that state, but it was held by the supreme court of the United States, in an unanimous opinion reversing the decision of the state court, that as this business was interstate commerce, it was not subject to taxation by the state.

The learned counsel for -the state, who presented with much ability at our bar the argument in support of the tax now in question, places much stress on the recent cases of Western Union Tel. Co. v. Massachusetts, 125 U. S., 530; Massachusetts v. Western Union Tel. Co., 141 id., 40; Pullman Palace Car Co. case, id., 18, and Maine v. Grand Trunk Railway, 142 id., 217. The decisions in the Telegraph cases and in the Pullman Car case were placed distinctly on the ground that the tax in these cases was imposed upon property having a situs in the taxing state, and were thus brought within the general rule that property used in interstate commerce is subject, as all other property within a state, to taxation for municipal purposes. The case of Maine v. Grand Trunk Railway was decided on the ground that the tax imposed under the statute of Maine in that case was a franchise tax upon cor'porate privileges conferred by the legislature of the state on the defendant corporation, and that it did not invalidate the tax because the amount was apportioned with reference to the gross receipts for transportation over its whole line, which extended beyond the state. The dissent in that case proceeded upon a different view taken by the minority of the court as to the character of the tax, their opinion being in substance that it was a tax on the business of interstate commerce. These cases do not disturb the general principle of the other cases. Following, as we suppose, the decisions of the federal court, we are constrained to hold that the tax now under consideration is void as a regulation of commerce.

The order of the general term is, therefore, affirmed.

All concur, except Maynard, J., not sitting.

       Affirming 47 St. Rep., 695.