author: Mayham, P. J.:

text:
    GEORGE B. MARTIN, Appellant, v. PETER A. PERQUA, Respondent.

      Bills and notes — what constitutes a waiver of notice of protest by an indorser,
    In an action brought by George B. Martin, tbe bolder of a promissory note made - by John F. Conkey, against an accommodation indorser, it appeared that Martin -bad bad tbe note discounted at a bank, and bad paid it at maturity; that no demand of payment was made, por was notice of protest given to tbe indorser.
    In order to show a waiver of demand and protest Martin produced a letter to himself from the indorser, in which be said be wanted no cost made on tbe notes; that be could pay them, and that be would secure Martin. Martin testified that in paying tbe note he relied on this letter as constituting a waiver of demand and protest.
    It appeared that tbe word “notes” was used in tbe letter, because Martin then held another note made by Conkey, indorsed by tbe defendant, which bad been protested.

      Held, that tbe language of tbe letter might apply to either note, and did not constitute a waiver of protest on tbe note in suit.
    At a later date tbe indorser wrote to Martin asking whether Conkey paid tbe note in suit, according to a promise to do so made by Conkey, to tbe indorser.

      Held, that this letter did not revive tbe indorser’s liability upon tbe note.
    Appeal by tbe plaintiff George B. Martin from a judgment of tbe Saratoga County Court, entered in the office of the clerk of said county on tbe 23d day of September, 1891, reversing a judgment: for tbe plaintiff for $109.75 and costs, rendered in a court of a justice of tbe peace.
    This action was commenced in Justice’s Court to recover against tbe defendant as indorse? of a promissory note. '
    Upon the trial of tbe action in tbe Justice’s Court, Martin, tbe plaintiff, testified that be, relying on a letter of October twenty-ninth,, written to him by Perqua, as constituting a waiver of demand of payment and notice of protest, and paid tbe note in suit to save tbe indorser Perqua tbe costs of protest.

      Ira D. Hoods and J. W. Hill, for tbe appellant.

      Charles H. Sturges, for tbe respondent.
   Mayham, P. J.:

The complaint was in tlie ordinary form of a complaint by tlie bolder against an indorser, alleging tlie demand and refusal at tlie place where tlie note was payable and notice of protest to tlie defendant.

Tlie answer contained a general denial, and, among other separate defenses, alleged that tlie note was never presented for payment at the place designated as the place of payment, and no demand was made and no notice of protest ever given to the defendant.

On tlie trial no demand or notice of protest was proved, and the defendant asked the court to nonsuit the plaintiff for that reason, and that motion was denied by the justice, who thereupon rendered judgment for the plaintiff for the amount of the note and costs It is not denied by the respondent that to charge an indorser of a promissory note demand of payment, and notice to the indorser of non-payment, are necessary prerequisites to recovery against him, unless notice of protest is waived.

But it is insisted by the respondent .that notice of protest was waived in this case. The chief ground of that contention is a claim in a letter written by the defendant to the plaintiff in which he uses this language: No, George, I want no cost made on notes, I can in time pay them, and will, rather than ask Isaac to sign with me I will give you a claim on my interest in my father’s estate or will do anything to make you safe and satisfied.” This letter was written on the twenty-ninth day of October, the day before the note in question became due. At this time another note held by plaintiff, and on which the defendant was also an indorser, was about a month past due, to which the above language would apply with even more force than to the note in question, and it appears from other correspondence that tlie note which matured on the thirtieth da.y of October was paid, or that he relied upon the maker’s promise that he would pay it. On the tenth of November, after the letter of October twenty-ninth, he writes the plaintiff as follows: Did Oonkey (the maker) pay the note which fell due on October thirtieth ? ITe wrote me that he would meet it.”

In the absence of any express waiver of notice of protest, we do not think that one. can be implied from this correspondence. The defendant being an accommodation indorser, and not the principal debtor, there are no equities between him and the holder which requires the court to relax the rule which exists between the holder and indorser as to the notice of protest.

The plaintiff, who had procured tfie note to be discounted at the bank, voluntarily paid the same and withdrew it from the bank without suffering it to go to protest, and he expressly testifies that he did not present the note to any one, and demanded payment. On the day 'the note fell due, before three o’clock, the hour for closing the bank, he presented his owli check and took the note out of the bank; and no demand of payment of the maker, or notice of non-payment to the defendant, who yas the first indorser, was given.

By that omission the indorser was discharged, unless he had waived notice of protest, which, as we have seen, he had not. Nor do we think his letter of November tenth revived his liability on this note. We think the .judgment of the County Court, reversing that of the justice of the peace, is right and should be affirmed.

PutNAM and ILerrioK, JJ., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of the Petition of JOHN BRIDGFORD and Others to Vacate an Assessment for the Expense of Excavating, Filling, Forming and Grading Myrtle Avenue from the West line of Lake Avenue to the East Line of Ontario Street in the City of Albany, New York.

      Assessments in the city of Albany — an injunction not proper in a special proceeding, to stay their collection — effect of a statute forbidding an equitable action for such a purpose — the contractor is a proper party to the proceeding to vacate the assessment— Laws of 1888, cha/p. 398; 1887, chap. 343, secs. 11, 13.
    In a special proceeding, taken by persons assessed to restrain a city from collecting an assessment, it appeared that the city charter provided that no assessment should he. void or should he vacated for any error, illegality or irregularity, in the proceedings or in the letting of the contract, unless the party objecting had . filed objections with the clerk of the board of contract and apportionment within ten days after the letting of the contract for the work. It was also provided that no assessment should he void, or be vacated for defective performance of the work by the contractor, unless during the progress of the work an affidavit stating the defects was filed with the same clerk.

      The charter also provided that if, in the proceedings relative to any assessment, or in proceedings to collect it, any fraud or defect in the work, or substantial error was alleged to exist or to have been committed, the party aggrieved might, within twenty days after the confirmation of the assessment, apply to the courts for relief.
    No affidavit pointing out defective work done by the contractor was filed during the progress of the work.

      Held, that this was essential, and not having been filed the court had no power to-review the performance of the work bv the contractor, and that the petitioners could not take' advantage of any errors, defects or irregularity which occurred before such confirmation.
    The charter contained the following provision: “And hereafter no suit or action in the nature of a bill in equity, or otherwise, shall be commenced for the vacation of any assessment in said city, or to remove a cloud upon title arising from any assessment hereafter made. * * * Owners of property shall hereafter, in proceedings to reduce or vacate or stay payment of assessments, be confined to the form of proceeding in this title mentioned.”

      Held, that the effect of this was to deprive the court of its power to entertain an ordinary action in equity, and that a temporary injunction to stay the collection of the assessment was improperly granted.
    That such an injunction could not be supported by invoking through an order the equitable powers of the court.
    That the “ stay ” mentioned in the charter was not an ad interim stay, but related to the final judgment.
    That, treating the order as a mere exercise of equitable power, it could not be supported since the petitioners had an adequate remedy at law.
    That no irreparable injury could result to them from the enforcement of the assessment, for if the assessment should finally be decided to be void the parties aggrieved might recover at law their payments made under duress of law, and for the further reason that, under the charter, the petitioners, if unsuccessful in this proceeding, had a right to redeem within two years after the sale.
    That the injunction order could not be supported, as one made to prevent a multiplicity of suits, there being no proper allegations to that end in the petition.
    That the rule that the appellate court will not interfere where a matter of discretion is concerned, had no application to a case where the injunction was forbidden by statute
    That the contractor, who looked only to this assessment and its collection for payment, was a proper and necessary party to the proceeding.
    Appeal by the city of Albany from an order of the Supreme Court, entered in the office of the clerk of Albany county on the 20th day of February, 1892, restraining it from enforcing or collecting certain assessments levied upon the real estate of the petitioners until the final determination of the above-entitled proceeding, which was taken to vacate and set aside an assessment for the expenses of excavating, filling, forming and grading Myrtle avenue from the west line of Lake avenue to the east line of Ontario street in said city.

      John A. Delehantry, for the city.

      Albert Hessberg, for the contractor.

      Alden Chester, John T. McDonough and Henry E. Stern, for the petitioners, respondents.
   Mayham, P. J.:

This is an appeal from the order of a Special Term of this court restraining and enjoining the city of Aibany and its officers from ■enforcing and collecting and from attempting to enforce and collect an assessment levied upon the real estate of petitioners for street improvements in said city.

The case shows that on the 16th day of September, 1889, a petition was presented to the common council of the city of Albany praying for the passage of a law or ordinance authorizing the. excavating, filling, forming and grading of Myrtle avenue in said city, from the west line of Lake' avenue to the east line of Ontario street, and that in pursuance of such petition the common council did, on the 8th day of November, 1889, pass such law or ordinance authorizing such work, two-thirds of all the members elected to the common council voting in favor thereof, and that such law or ordinance was duly approved by the mayor; that thereafter the board of contract and apportionment of the city passed a resolution directing that notice be given that sealed proposals would be received for the performance of the work authorized by such ordinance.

The case also shows that such bids were at the time designated in said notice received, and the contract awarded to one Jacob Holler on tile 13th of January, 1890, and that the cost of the work performed under such contract amounted, in the aggregate, to the sum of $8,J99.?0.

On the 21st of September, 1891, the board of contract and apportionment, by an assessment confirmed on that day, apportioned and assessed the whole of that sum upon and among all the houses and lots and vacant lots intended to be benefited by said work in proportioii to the advantage which each was deemed, by said board, to be-benefited thereby within the district fixed by that board.

On the 8th of October, 1891, the petitioners commenced thdr proceedings by the service upon the contractor and the corporation counsel of an order to show cause on the 10th of October, 1891,. at which time the proceedings were adjourned until the 29th of December, 1891, when an order of reference was entered to take-proof and report the same to the court.

On the 29th of January, 1892, no further steps having in the-meantime been taken by the petitioner on such reference, the city chamberlain caused the property of the petitioners, described in the petition and covered by such assessment, to be advertised for sale under the assessment. The petitioners thereupon made a motion at Special Term of this court, on the 6th day of February, 1892, for an order restraining the city from selling this property under said assessment until the final hearing and determination of this proceeding, which was granted, and from that order the city and contractor-appeals.

The appellants insist that the petitioners cannot, after the city has-proceeded and incurred liabilities under the assessment, not having-filed any objection to any of the proceedings, now restrain, in this proceeding, the collection of this assessment. Section 11 of chapter-242 of the Laws of 1887, which amends section XI of chapter 298 of the Laws of 1888, provides as follows:

“ If, in the proceedings relative to any assessment or assessments, for local improvements in the city of Albany or in the proceedings, to collect the same, any fraud or defect in the work or substantial error shall be alleged to exist or have been committed, the party aggrieved thereby may, within twenty days after the confirmation of the assessment and apportionment, apply to have the assessment vacated or reduced, or both, to a judge of the Supreme Court, at Special Term, or at chambers, or to the county judge, who shall thereupon, upon due notice to the counsel of the corporation of said city and to the contractor and his sureties, or any other person, if they or either of them be proper parties, proceed forthwith to hear the proofs and allegations of the parties.”

By section 12 of chapter 242 of the Laws of 188Y, section 4 was added to title XI of chapter 298 of the Laws of 1883, as follows i “And it is further provided that no assessment that may be hereafter made shall be void or shall be vacated, nor the sale of property therefor be declared illegal, or the deed or certificate of conveyance therefor be adjudged invalid or/ illegal, or any moneys paid on account of or because of said assessment be recovered back or refunded, because of any error, illegality or irregularity in any of the proceedings in relation to the work or improvement for which such assessment is made prior to the commencement of the work, including the letting of the contract for said work, unless some party objecting thereto shall have filed his objection or objections with the clerk of 'the board of contract and apportionment within ten days after the letting of the contract for said work, stating the error, illegality or irregularity complained of, together with his address.”

This section then provides for a hearing before the board of contract and apportionment and that their decision shall be final, unless proceedings are instituted within ten days after the fifing of said decision to review such decision. Section 1 of title XI of chapter 298 of the Laws of 1883 provides that “no assessment that may hereafter be levied shall be void or shall be vacated by any court, because of a failure on the part of the contractor to comply in the execution of the work with all of the requirements of law or the contract in respect thereto,” unless during the progress of the work an affidavit, stating what the defects are, shall be filed with the clerk of the board of contract and apportionment.

No such affidavit as is contemplated by this section seems to have been filed, and, therefore, the court cannot, in these proceedings, pass upon the manner of the ■ performance of the contract by the contractor, as questions upon that subject can only be raised in the manner pointed out by section 1 of title XI of chapter 298 of .the Laws of 1883.

The undisputed evidence shows that neither during the advertisement for proposals for the letting of the'contract for the performance of the work, nor at the time of awarding of the contract, and making of the same, nor at any time during the performance -of the work done thereunder, nor until after the same was accepted by the street commissioner, was any objection made by or on behalf of the petitioners, or any other person as to any of the steps or proceedings taken by the city authorities, under the provisions of the acts of 1883 and 1887, above quoted, and the petitioners cannot, without having complied with the provisions of those acts, take advantage of any alleged irregularity or defect in the proceedings prior to the acceptance of such work by the street commissioner.

The only question left for consideration on this motion is whether the court can restrain the collection of this tax, after all the liabilities have been incurred without objection, and the tax to meet such liabilities has been assessed by the proper authorities and is in process of collection ?

It is clear that an ordinary action to restrain the collection of this tax would not lie. But the legislature has provided a proceeding under which the rights of the parties may be effectually preserved, provided the persons aggrieved proceed promptly and in accordance with the statutory requirements; and public policy requires that they should seek redress under the statute or be remediless.

The petitioners having neglected to file the statutory objections to the making of the contract and the performance by the contractor, the remaining question for discussion on this appeal is as to the regularity and legality of the assessments for payment of this work. Has the court the powder, under the charter by virtue of which this municipality assumes to levy this tax, to restrain the city from the collection of the same pending these proceedings %

If such power exists, it must be found in the statute, either by virtue of its direct provisions or by fair implication from its provisions. Section 3 of title XI of chapter 298 of the Laws of 1883 provides as follows: “And hereafter no suit or action in the nature of a bill in equity, or otherwise, shall be commenced for the vacation of any assessment in said city, or to remove a cloud upon title arising from any assessment hereafter made. * * * Owners of property shall hereafter, in proceedings to reduce or vacate or stay payment of assessment, be confined to the form of proceeding in this title mentioned.”

This provision of the statute is almost identical with chapter 410 of the Laws of 1882, known as the “New York Consolidation Act,” and the question of the power of the court, under that act, to stay proceedings on an assessment until the final determination of an action prosecuted to test the validity of an assessment levied for street improvements, was denied. (Sixth Avenue R. R. Co. v. Mayor, etc., of the City of New York (17 N. Y. Supp., 903). In this case this court, at General Term in the First Department, uses this language: “ There would be, ordinarily, jurisdiction to restrain the sale of the plaintiff’s property under an illegal assessment and to prevent the creating of a cloud upon the title.” Section 897 of the Consolidation Act, however, expressly.,provides that “no suit or -action in the nature of a bill in equity, or otherwise, shall be commenced for the vacation of any assessment in said city, or to remove a cloud upon title, but owners of property shall be confined to their remedies in such cases to the proceedings under this title. This provision was held in Mayer v. Mayor, etc. (101 N. Y., 284), to be unqualified and to apply to every class of assessments.

By that section, therefore, the power of this court to grant injunctions in cases of this character was absolutely taken away, and although the plaintiff may, on its papers, make out a case which, in the absence of that section, would entitle it to relief, we are of opinion that the plain provisions of the Consolidation Act require us to hold that the action cannot be maintained.”

It is true that the action from which we have quoted was an ordinary suit in equity to obtain a perpetual injunction, and such action was clearly prohibited by the section of the statute quoted in the opinion. But it will be observed that the statute which furnishes this special proceeding and takes away the power of the court to entertain an ordinary action in equity, for the relief demanded by the petitioners, makes no direct provision for an ad interim stay pending the prosecution of this statutory remedy.

It is true that the section which prohibits a suit in equity provides that “ owners of property shall hereafter, in proceedings to reduce or vacate or stay payment of assessments, be confined to the form of proceeding in this title mentioned.” But the stay provided for in this paragraph is not described as an intermediate stay tending to obstruct the progress of the municipal authorities before final judgment in favor of the petitioner in the proceedings, but is placed in the same category with the reduction or vacation of assessment, the result of the final determination of this proceeding. It is not, therefore, clear that the words “ stay of pi’oceedings,” used in the statute, relates to an intermediate stay, and that language of the statute held to relate to the final order or judgment is more in harmony with the general theory of the law relating to the taxing power than it ■would be if held to relate to an ad interim stay.

The general policy of the law is to enable taxing officers to pro_ eeed without obstruction, when they have acquired jurisdiction of the person and subject-master, and their acts are not assailed for fraud, in the collection of the revenues necessary for the administration of public affairs.

In Rome, Watertown and Ogdensburg Railroad Company v. Smith (39 Hun, 332), Van Brunt, J., in delivering the opinion of the court, says: “ If they (the jdaintiffs) are compelled to pay this tax, and it should finally be adjudged, under proceedings now pending-(which was a certiorari), to be erroneous, ample means of restitution are provided by the statute. * * * Public policy requires that the collection of the taxes, adjudged by the proper authorities to be necessary for the maintenance of the local and State government,, should not be prevented or interfered with by injunction suits in equity to test the legality of assessments when there is any other possible redress. In this case other legal redress exists, and proceedings have been instituted to enforce it.” While this opinion was pronounced in a case where the payment of a tax was sought to be restrained pending a proceeding by certiorari, under chapter 269 of the Laws of 1880, it would seem to apply with equal reason to-the case at bar. Hnder that statute it was provided that a writ of certiorari should not operate as a stay of proceedings or stay the payment of the assessment. It is true that no express prohibition against a stay is found in the Albany charter. It is also true that while by that statute the court is shorn of its ordinary equitable powers, it is not clothed with any express power to grant the stay asked for on this proceeding. But the learned counsel for the petitioners invokes the exercise of equitable powers by this court to grant a stay in these proceedings, although its powers as a court of equity to entertain a proceeding by injunction are suspended by the provisions of the charter.

This, we think, would be an evasion of the spirit, if not a violation of the letter, of the statute. It can hardly be maintained that while the legislature for a wise purpose took away from parties aggrieved the right to the protection which an equitable action by injunction is presumed to afford, it attlie same time left with the court the right to grant, by order of injunction, the stay denied by action. But if we treat this order as an injunction order, to be granted in the exercise of the equitable powers'of the court, we must then apply to this case the ordinary rules for invoking equitable jurisdiction, and no rule in equity is more familiar than that a court of equity •will not' interfere when a party has an adequate remedy at law. It can hardly be urged that the collection of this tax will result in an irreparable injury to the petitioners.

If the tax is illegal and improperly assessed, payment under the compulsory process of the ekamherlain will be involuntary or coerced payment, and the tax can be recovered back. (Peyser v. The Mayor of New York, 70 N. Y., 497; Bruecher v. Port Chester, 101 id., 240; Western R. R. Co. v. Nolan, 48 id., 516; Susquehanna Bank v. Supervisors of Broome County, 25 id., 312; Zink v. McManus, 121 id., 264.)

If it be held, finally, that the petitioners, by reason of laches in making objections, have waived their right to redress, then, within two years after the sale of the property, the petitioners may tender the bid and interest, and redeem the property from the forfeiture -of the sale. Nor do we see that the petition discloses in what way this proceeding and injunction will prevent a multiplicity of suits.

It is not alleged that the numerous q>arties contemplate bringing actions at law, or in any other manner intend to prosecute actions against the city for or on account of these assessments. (Bouton v. Brooklyn, 15 Barb., 387; Blake v. Brooklyn, 26 id., 301; Heywood v. Buffalo, 14 N. Y., 541; Cole v. New York, 31 id., 99.) But if this were .otherwise, it would not justify the granting of an injunction when that proceeding is, as we have seen, forbidden

by the statute. The petitioners urge that the granting of a temporary injunction is a matter resting in the discretion of the court, and that the court having, at Special Term, exercised that discretion, this court should not interfere. But this rule does not apply when it appears, as in this case, that air injunction is prohibited by statute, and that no final injunction can, in any event, be granted in the proceeding. (Strasser v. Moonelis, 108 N. Y., 611.) But if an injunction could, in a projrer case, issue to restrain the collection of a tax of this character, we think that the allegation in the petitiou is insufficient to raise any legal presumption against the validity of this tax to justify the granting of an injunction in this case when the work has been done and accepted without objection on the part of the petitioners, especially when all of the material facts are put in issue by the answering affidavits on the part of the defendant.

We are also of the opinion that the contractor whose interests were to be affected by these proceedings was a necessary and proper' party to the record. He could look only to this assessment and the collection of this tax for his compensation, and when it was proposed to cut off his source of supply, he had a right to be in court to defend his interest.

The order should be reversed and the temporary injunction vacated, with costs.

PutNAm, J., concurred; HeeeioK, J., not acting.

Order reversed and temporary injunction vacated, with costs and printing disbursements.


author: Mayham, P. J.: Herrick, J.:

text:
    THE PEOPLE ex rel. GEORGE C. CARTER, Plaintiff, v. FRANK RICE, Secretary of State of the State of New York, Defendant.

      Apportionment act, chapter 897, Laws of 1892 — validity thereof — difference in the creation of senate and assembly districts — an extraordinary session of the legislature- — -an “ extraordinary occasion” — contents of the governor’s proclamation — discretion of the legislature — injunction to restrain a State officer from, the performance of a statutory duty.

    It is provided by section 4, article 8 of the New York State Constitution, that “an enumeration of tlie inhabitants of the State shall be taken, under the direction of the legislature, in the year 1855 and at the end of every ten years thereafter,” and that upon the enumeration so taken an apportionment of the senate and assembly districts shall be had. Such an enumeration was taken in each tenth year, to and including 1875, after which date no reapportionment was made until 1879, when a reapportionment was made by chapter 208 of that year, based on the enumeration of 1875, and no further enumeration was taken until 1892, when by chapter 5 of the laws of that year an enumeration was ordered to be taken.
    Upon the day when the legislature adjourned sine die, April 21, 1892, and immediately prior to its final adjournment, the governor, pursuant to section 4 of article 4 of the State Constitution, which declares that the governor shall have power to convene the legislature on extraordinary occasions, when no subject shall he acted upon, except such as the -governor may recommend ior consideration, reconvened the legislature for a session to commence on April 35, 1893.
    The governor, in his proclamation, assigned no reason for convening the legislature, hut subsequently sent it .a. message recommending for its consideration hn apportionment, which the legislature proceeded to make. Article 3, sections 4 and 5 of the Constitution, provide that an apportionment shall be made by the legislature “at the first session after the return of every enumeration,” and that each senate and assembly district shall contain, “as nearly as may be,” an equal number of inhabitants.
    At this extraordinary session the legislature passed a new apportionment act, being chapter 397 of the laws of that year.
    In a proceeding taken to test the validity of such apportionment:

      Held, that the act (chap. 397 of the Laws of 1893), and the apportionment made under it, were constitutional.
    That the fact that the legislature of 1885 failed to perform its constitutional duty of ordering an enumeration, did not prevent a subsequent legislature from acting in that regard.
    It appeared that the provisions of the Constitution (art. 3, §§ 4, 5) as to the composition of senate and assembly districts differed, it being directed that a senate district must contain, as nearly as may be, an equal number of inhabitants, “excluding aliens and persons of color not taxed,” while in the case of an assembly district only aliens were to be excluded.

      Held, that as the present proceeding was taken only to test the constitutionality of the act as to an assembly district, the court would not consider the fact that the enumeration of 1893, as alleged, failed to enumerate and tabulate persons of color not taxed.
    That where a part of an act is constitutional and another part is not, and these parts are separable, that which is constitutional must be upheld.
    That at a session of the legislature convened by the governor, provided it was the first session after the return of the enumeration, it would, within the meaning of the Constitution, have power to make an apportionment, and that the apportionment made was valid.
    That the failure of the previous legislature to make an enumeration and gross inequalities in the apportionment act of 1879, constituted an “extraordinary occasion,” and justified the governor in convening the legislature.
    That it was not material that his piroclamation did not state the object for which the legislature was convened.
    That section 5 of article 3 of the Constitution, directing that the apportionment of members of assembly be made, “ as nearly as may be,” according to thenumber of inhabitants of the several counties, gave to the legislature a discretion in the matter which had not been abused.
    That the inequalities of the apportionment of 1879 seemed as great as those of the act of 1893; and that, as the effect of granting the application for a mandamus in this case would be to make the representation revert to the basis of 1879, the application must be denied.
    That there must be a very clear case made to justify the court in interfering by injunction to prevent a State officer from performing a statutory duty. „

      MotioN made at General Term, by the People of the State of New York on the relation of George O. Carter, for an order directing that a peremptory onandamus issue, directed to the defendant Frank Rice, Secretary of State of the State of New York, which, as stated in the notice of motion, would command him “ to forthwith proceed to issue and deliver to the clerks of the respective counties of the State of New York, election notices, as provided by section 5 of chapter 680 of the Laws of 189'2; and that he embrace in said election notices, the number of members of assembly to be voted for at the election to be held on the 8th day of November, 1892, required and allowed to be voted for under the provisions of the apportionment act of the legislature, known as chapter 208 of the Laws of 1879, entitled cA.n Act to organize the Senate Districts and for the apportionment of the Members of Assembly of this State; ’ and that he be commanded to give election notices in pursuance of the apportionment contained in said act and in conformity with the certificates filed with him by the board of supervisors of the respective counties of this State; and of the board of aldermen of the city and county of New York, filed, in pursuance, with the provisions of said chapter 208 of the Laws of 1879, with the Secretary of State of the State of New York; and that said writ of mandamus contain a restraining order, and that the defendant Frank Rice, Secretary of State of the State of New York, be restrained from accepting and filing certificates of the division of counties into assembly districts, as provided by chapter 397 of the Laws of 1892; and from accepting, filing or canvassing returns from election districts, other than those created by said chapter 208 of the Laws of 1879 ; and from doing or suffering to be done, or aiding or procuring to be done, or done by virtue of the provisions of chapter 397 of the Laws of 1892, entitled ‘An Act to organize the Senate Districts and for the Apportionment of Members of Assembly of this State,’ upon the ground that the said act of the legislature is unconstitutional and void; and also that chapter 5 of the Laws of 1892, entitled ‘An Act to provide for the enumeration of the inhabitants of this State,’ in pursuance of which the enumeration upon which said act, chapter 397 of the Laws of 1892, was based; and that the act of the defendant Frank Rice, Secretary of State of the State of New York, recognizing as valid the said last-mentioned acts of the legislature, are calculated to work irreparable injury to tlie People of the State -of New York, and especially to the rights and privileges of the relator in these proceedings ; and that said application for said ma/ndamus will be made upon all the grounds set forth in the'moving papers, and for such other and further relief in the premises as to the court may seem meet and proper to grant.”
    The ground of the application, was the unconstitutionality of chapter 397 of tlie Laws of 1892.
    Enumerations were taken in the State of New York in 1855, 1865 and 1875, and none thereafter until-1892. The apportionment act of 1879, chapter 208, was-based on the census of 1875. The enumeration for 1892 was directed by chapter 5 of the laws of that year. The legislature of that year adjourned sine die on April 21, 1892. Just before its adjournment the governor reconvened it by the following proclamation :
    PROCLAMATION BY THE GOYERNOR.
    State of New YobK, 1
    Executive Chambee. )
    Pursuant to the power vested in me by Section 4 of Article IY of tlie Constitution, I hereby convene the Legislature in Extra-, ordinary Session, at the Capitol, in the city of Albany, on tlie twenty-fifth day of April, 1892, at 8.30' o’clock in the evening.
    Done at the Capitol, in the city of Albany, this twenty-first [l. s.] day of April, in the year of our Lord, one thousand eight hundred and ninety-two.
    By the Governor: ROSWELL P. FLOWER.
    T. S. Williams,

      Private Secretary. -

      ' Edwin EL. Bisley, for the appellant.

      Simon W. Bosendale, Atto'rney-General, for the respondent.
   Mayham, P. J.:

This was a motion for a peremptory mandamus requiring the Secretary of State to immediately issue notices to the several county clerks' of the State stating the facts required by section 5 of chapter 680 of the Laws of 1892, and directing them to include in such notices the number of members of assembly from each county directed, required and allowed by the apportionment law as contained in chapter 208 of the Laws of 1879.

The motion further asks to restrain the Secretary of State from receiving, filing or recognizing certificates of the division of the counties into assembly districts, as prescribed by chapter 397 of the Laws of 1892, and also restraining him from canvassing election returns from assembly districts other than those created in pursuance to the apportionment made by chapter 208 of the Laws of 1879.

This application is based chiefly upon the affidavits of the relator, wherein it is alleged that the Secretary of State is about to and has issued notices of election to the county clerks of the several counties of the State for the election of members of assembly at the general election to be held in November, 1892, in pursuance of the provisions of chapter 397 of the Laws of 1892, by which the number of members of assembly to be chosen in some of the counties in the State was changed from that provided for by chapter 208 of the Laws of 1879.

The alleged ground upon which the application is made is, that the enumeration of inhabitants upon which the apportionment of 1892 was made was unconstitutional, and that the 'apportionment, based upon such enumeration, was, therefore, unconstitutional and void, and that the apportionment was unequal and, therefore, not in conformity with the requirements of that instrument, and is for that reason unconstitutional and void.

The main points urged against the unconstitutionality of this enumeration and apportionment are:

First. That the time of making the enumeration was unauthorized by the Constitution.

Second. That the enumeration itself was unconstitutional in that it did not contain a statement of the number of persons of color not taxed.

Third. That the time of making the re-districting or apportioning of the assembly districts was not that prescribed by the State Constitution.

Foui-th. That the assembly apportionment designated by the act of 1892 was not so arranged as to contain, as nearly as may be, an equal number of inhabitants.

Tlie first ground of objection 'above specified, viz., that the enumeration was not taken at tlie termination of the first decade period after the enumeration of 18T5, does not seem to be strenuously urged by the learned counsel for the relator, and it seems to be conceded that as the legislature of 1885 failed to perform the duty imposed upon them by section 4 of article 3 of the Constitution, in neglecting to provide for the enumeration of the inhabitants in that year, that that duty might, be performed by a subsequent legislature at any time before the expiration of the decade for which it was to be taken.

The manifest object of the constitutional provisions in providing for frequent enumeration of the people, being for the purpose of equalizing representation between different localities and political divisions of the State, presents a strong argument in favor of the performance of that duty by á subsequent legislature, when the body upon which the" duty was directly charged failed in its performance.

This principle has been established and sustained by a uniform current of judicial decisions. (People v. Supervisors of Ulster County, 34 N. Y., 271; Rumsey v. The People, 19 id., 50; Smith v. Jones, 1 Barn. & Adol., 328-334; Ex parte Heath et al., 3 Hill, 42.)

In the-case last cited, CoweN, J., at page 47, says: “Nothing is better settled, as a general rule, than that when a statute requires an act to be done by an officer, within a certain time, for a public purpose, the statute shall be taken to be merely directory, and though he neglect his duty by allowing the precise time to go by, if he afterwards perform, the public shall not suffer by the delay.”

In People v. Supervisors of Chenango County (8 N. Y., 330), tlie question was whether a board of supervisors, which had neglected to perform a duty which they were required to perform at the annual meeting, could be compelled to perform it at a later period, and in the-discussion of that question Judge ‘Willaed says : “ Their neglect to perform their duty at the time required cannot nullify the statute. They, or their successors, are bound to do what was required, and on failure to perform it may be compelled by mandamus.”

It the People ex rel. McMackin v. The Board of Police (46 Hun, 296), it was held that wlien tlie statute directed tliat tbe board of police should mate appointments of inspectors of election in the months of August and September in each year, their failure to do so did not invalidate an appointment made after that time. The principle above enunciated seems so well settled that further citation of authorities is unnecessary. The same rule of construction which applies to statutes is equally applicable to constitutional provisions of similar character. In the People v. Enoch L. Fancher (50 N. Y., 288), AlleN, J., says: “ The same general rules which govern the construction and interpretation of statutes and written instruments generally, apply to and control in the interpretation of written constitutions.” 'Within the above principles and authorities, it would seem that the legislature of 1892 might lawfully perform the constitutional duty of providing for an enumeration of the inhabitants of the State, which the legislature of 1885 neglected and refused to do, and that the law authorizing the enumeration in 1892 was constitutional.

The second objection taken to the unconstitutionality of the enumeration is that it failed to enumerate and tabulate persons of color not taxed. The Constitution of the State, relating to senate districts provides that Each senate district shall contain, as nearly, as may be, an equal number of inhabitants, excluding aliens and persons of color not taxed.” (Article 3, section 4 of the Constitution.) Section 5 of the same article provides that “ 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.”

It .will be seen by this ju’ovision that persons of color not taxed are not to be excluded from the enumeration in the designation of assembly districts; but the enumeration for the apportionment is to embrace all except aliens, and it is difficult to see how an apportionment of members of assembly can be made to conform to that provision of the Constitution without embracing all the inhabitants except aliens. This the petition expressly alleges was done by tlie legislature in making the apportionment by chapter 680 of the Laws of 1892.

No question is raised in the notice of motion in this case as to the formation of senate districts, and we are only called upon in this proceeding to examine the constitutionality of tlie law as applied to assembly districts. By the theory of the Constitution the formation -of senate and assembly districts are. entirely distinct. Senate districts are formed by the legislature, while only the legislature .apportions the number of assemblymen to which counties are entitled^where entitled to more than one, between the different counties, leaving the districts to be formed by the board of supervisors.

The formation of the assembly districts is in no way dependent upon the population or boundaries of the senate district; and it would seem, from the different constitutional provisions as to the persons to be excluded from the enumeration, if the color line is still in force, that they are composed of different classes of persons, to wit, persons of color not taxed, to be included in assembly enumerations and excluded in senatorial enumerations.

As the senate and assembly districts are in no way identical, and the formation and erection of one in no way depends upon the other, it would follow that if the apportionment as to senate districts was ■unconstitutional by reason of the failure to exclude from the apportionment persons of color not taxed, because that class of persons are excluded in senatorial apportionment by the Constitution, that fact could not render the formation of 'assembly districts unconstitutional, when the Constitution in express terms requires that class of persons to be included in the enumeration. If the enumeration is constitutional as to the assembly districts, and unconstitutional as to the senate,'the former will be upheld, while on a proper application the other might be set aside. Where parts of an act of the legislature, not dependent upon each other, are held one to be constitutional and another unconstitutional, the part held to be constitutional will be upheld while the. part unconstitutional will be overthrown.

In Wynehamer v. People (13 N. Y., 442), SeldeN, 'J., says: “ Where part of a law is in conflict with the Constitution, and that part is entirely separable from the residue, so -that other portions of the law can be enforced without reference to it, there the unconstitutional part only will be condemned.”

In Presser v. Illinois (116 U. S., 252), the court say: “That statutes tliat are constitutional in part only will be upheld, so far as they are not in conflict with the Constitution, provided the allowed and prohibited parts are separable,” and similar doctrine is laid down in Packet Company v. Keokuk (95 U. S., 80); Penniman's Case (103 id., 714); Unity v. Burrage (Id., 459); Baldwin v. Franks (120 id., 679).

It is urged with great force, by the learned attorney-general, that by the effect of the thirteenth and fourteenth amendment of the Federal Constitution and the legislation in this State, arising out of the provisions of those amendments, there no longer exists in this State a class o£ persons known as “persons of color not taxed.” That by the enfranchisement of persons of color, without regard to property qualifications, all that class became citizens and taxable, at least subject to poll tax, and the color line was expunged from our Constitutidn by force of the provisions of the Federal Constitution. But the views we have taken of this question would seem to uphold the constitutionality of the assembly district apportionment, and that, as we read the notice of motion, is the only question now before us, and we are not called upon to consider that question on this motion.

The next question for consideration is whether the apportionment can constitutionally be made at an extraordinary session of the legislature, during the same year that the enumeration is taken, and by the same legislative body.

The only constitutional restriction or limitation on the time for making the apportionment is that it is required to be made at the first session after the return of every enumeration.” There is no direct requirement in the Constitution that it shall be at a regular session of the legislature, nor is there any constitutional prohibition against its occurrence at an extraordinary session of the legislature, provided such session is the first one occurring after the enumeration.

It is true that it has been held that the provisions of the Constitution, as to the time of making the apportionment, is not mandatory, and the failure of the legislature to make the' same at the first succeeding session would not render an apportionment at a later period void.

In Rumsey v. People (19 N. Y., 41, 54), SteoNG, J., in delivering the opinion of the court, uses this language : “ It has been objected to the acts constituting the Assembly apportionment and the Senate districts, that they were not passed at the first session after the return of the enumeration made in 1855, according to the direction in the Constitution (article 3, § 4). That, direction has not generally been considered so peremptory as to prohibit the performance of those acts at another time. It is apparent that no such restriction was designed as to the time when sitcli apportionment of Assembly districts and formation of Senate districts should be established.”

In the case Johnson, Oh. J., uses this language: “Now, as to Senate districts and Assembly apportionment, they had power to act in .1857, as the neglect of their imperative duty in 1856 would not malte void the apportionment of 1857.”

From this case it appears that the constitutional provision is not mandatory that the apportionment shall be made at the next regular session of the legislature chosen at. the succeeding election as is .strenuously contended by the counsel for the relator. That being .so, if the extraordinary session at which this apportionment was made was a legal and constitutional session of the legislature, then it could properly make this apportionment. The governor, by his proclamation, assumed to convene the legislature in extra session under the provisions of section 4 of article 4 of the Constitution. This article gave the governor power to convene the legislature in ■extraordinary session, and from the very nature of this provision lie must be the judge as to what constitutes the extraordinary ■occasion. But if we are to look for facts constituting an extraordinary occasion, it can be found in the neglect of previous legislatures to provide for an enumeration upon which an apportionment ■could be made, and the gross inequality of representation of the different portions of the State in the legislature, which was not only a matter of public notoriety, but abundantly appears in the papers on this motion, furnish such extraordinary occasion. But it is urged that the proclamation did not set forth the object for which the legislature was convened, and that for that reason it was irregular .and did not authorize the legislature to make an apportionment.

The Constitution provides that “at extraordinary sessions no ■subject shall be acted upon, except such as the governor may recommend for consideration.” (Art. 4, § 4.) There is nothing in this constitutional provision that requires the governor to recommend any subject to the legislature in the proclamation convening the legislature in extraordinary session.

But under this provision, the legislature after convened would be powerless to act if the governor failed to recommend a subject for their action. This, however, the governor did on the convening of the legislature, by a message addressed to them, in which they were specifically limited to the making of an apportionment. It cannot, therefore, be said that the legislature acted without the authority, upon which alone the Constitution empowers them to act. They, therefore, in fact, legislated upon the subject recommended by the governor, and the objection to their acts upon that ground necessarily falls.

The only remaining question upon this point is, was the extraordinary session a session of the legislature % If it was, then it was clearly the first session after the enumeration, and one at which the-apportionment could constitutionally be made. Most undoubtedly it was a session of the legislature, and came within the language of the Constitution. This was clearly shown by Justice Macomber,. in his opinion lately handed down in the People ex rel. Pond v. The Monroe Supervisors (not reported), he says: There may be more than one session of the legislature during the legislative year,, and that an Extraordinary Session may be the next session after the return of the enumeration to the Legislature if the governor interpose his discretionary power so to reconvene that body, though in the same year, is, I venture to think, well shown by the Constitution itself, taken as a whole.”

This view is strengthened when we find that where the Constitution requires that any act shall be submitted to a legislature subsequently chosen, as in proposing amendments to the Constitution, it is expressly provided that the proposed amendment must be submitted to a legislature subsequently to be chosen by the people. It is fair to argue and infer, therefore, that if the apportionment was required to be passed by a legislature subsequently chosen, the Constitution would have so expressly provided.

I am, therefore, clearly of the opinion that it was competent within the Constitution for the legislature to make this apportionment at the session at which it was made. It remains to consider whether the assembly apportionment in the act under consideration is such as to authorize the court to set the act aside as unconstitutional and void.

Section 5 of article 3 of the Constitution provides that “ 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 the respective inhabitants.” It is clear that the words ■“ as nearly as may be ” are words conferring a discretion upon the legislature; they were not in the original Constitution, and first became a part of the fundamental law by the amendment of 1891.' That amendment could have had no other purpose than that of conferring a discretion on the legislature in making the apportionment. But we are not without judicial guide iirdetermining what this phrase “ as nearly as may be ” signifies. In Indianapolis and St. Louis Railroad Company v. Horst (3 Otto [U. S.], 300, 301), Judge Swayne, in speaking as to the conformity of the pleadings and practice of that court to the practice of the State court, when the action is prosecuted in the United States Courts in a State, in construing the statute of the United States containing these words, says: “ The conformity is-required to be ‘ as near as may be; ’ not as near as may be possible, or as near as may be practicable.”

This indefiniteness may have been suggested by a purpose; it devolved upon the judges to be affected the duty of construing and deciding, and gave them the power to reject, as Congress doubtless expected they would do, any subordinate provision in such State statutes, which in their judgment wonld unwisely encumber the administration of the law or tend to defeat the ends of justice in their tribunals.”

The Constitution of the State of Maine provides that the districts shall conform, as near as may be, to county lines, and be apportioned according to the number of inhabitants.” And Whitman, J., in construing that language, says: The words as near as may be,’ show that something was to be left to the discretion of the legislature, and are to be regarded as in some measure directory; and not containing a mandate of a nature so explicit as that obedience must follow without consideration.” ,

The language of the Constitution in that State is even more explicit than in the New York Constitution, for it provides that the apportionment shall be made “ according to the number of inhabitants,” and. yet the court in 18 Maine, 460, in declining to interfere with an apportionment, say: “ If such power should be abused in any case, the remedy is with the people. Those guilty of any such outrage will be very likely to become in time the victims of their own misconduct. In popular governments this, and the right which it may be believed the people will exercise of displacing bad servants, are the great checks to the abuse of power.”

In Prouty v. Stover (11 Kan., 261) the court, in discussing this question, say: “ An apportionment cannot be overthrown, because the' representatives are not distributed with mathematical accuracy according to the population. Something must be left to the discretion of the legislature; and it may, without invalidating the apportionment, make one district of a larger population than another. It may rightfully consider the compactness of territory, the density of population, and, also, we think, the probable changes of the future, in making the distribution of representatives.”

It will be seen that in construing constitutional provisions like the one under consideration, where the legislature have a discretion in making the apportionment, the courts have not regarded themselves as authorized to review that discretion. Any other construction would make the apportionment to depend upon the discretion of the.courts, which have not been invested by the Constitution with any discretionary power upon this subject, and take the same from the legislature where the Constitution has so plainly lodged it.

Again, this discretion has always heretofore been exercised by the legislature without interference from the judicial department of the State, which furnishes a strong reason for holding that the people, by universal consent, have considered that that power is lodged with the legislature, and that, too, when the enumeration showed greater inequalities of representation than any of which the relator in this case complains.

In the apportionment of 1875 Orange county, with a population of 82,225, was awarded two members of assembly, while St. Lawrence county, with a population of 78,014, was awarded three members, Suffolk county, having a population of 50,350, was given one member, while Cattaraugus, having only 45,737, was given two members, and "Washington, with a population of 46,330, was given two members, and Niagara, with 47,620, Otsego, with 48,987, and Wayne, with 47,567, were each given two members, so the list might be multiplied.

From these figures it will be seen that the legislature has uniformly exercised this discretion, and that, too, without their acts being questioned in the courts as unconstitutional. Reference to these inequalities are not made for the purpose of offsetting one wrong against .another, but rather to show that such irregularities have not been regarded as such an abuse of the discretionary power vested in the legislature as to render their apportionment unconstitutional and woid. I am not unmindful of the fact that a different conclusion has been reached by a majority of the judges of the General Term of the fifth department upon some of the questions involved in this motion. But that decision did not involve the restraining of a State officer from the discharge of a statutory duty imposed upon him, the' performance of which is a necessary prerequisite to the holding of an annual election in the State for the election of members of assembly.

It is true that the motion before us asks the mandatory process of this court, compelling the Secretary of State to issue notices of election of members of assembly, in pursuance of the provisions of chapter 208 of the Laws of 1879, but we have already seen that if chapter 397 of the Laws of 1892 is unconstitutional by reason of the inequalities of representation, that the provisions of chapter 208 of .the Laws of 1879, based upon the enumeration of 1875, as the population of the State then was,' would be subject to the same •criticism and condemnation.

In a matter of such grave importance, so far-reaching in its consequences, the court should not resort to this extraordinary power of injunction and mandamus against a co-ordinate department of the government, except in a case where the unconstitutionality of the law under which the administrative officer is required to act, is free from reasonable doubt.

In Ex parte McCullum (1 Cowen, 550), Sava&e, J., says: “ Before the court will deem it their duty to declare an act of the legislature unconstitutional, a case must be presented in which there can be no rational doubt.” An act of the legislature cannot be set aside as unconstitutional, unless its incompatibility with the Constitution is manifest and unequivocal.”

In People ex rel. Wood v. Draper (15 N. Y., 532-545), the court say: There is room for much bad legislation and misgovernment within the pale of the Constitution; but whenever this happens, the remedy which the Constitution provides, by the opportunity for frequent renewals of the legislative bodies is far more efficacious than any which can be afforded by the judiciary. The courts cannot impute to the legislature any other than public motives for their acts.”

In People ex rel. Burrows v. Supervisors (17 N. Y., 235), fire court uses this language : “ Some respect is due to the opinion, even,, of a co-ordinate power of the government. A legislative act is not to be declared void upon a mere conflict of interpretation between the legislature and the judicial power. Before proceeding to annul by judicial sentence what has been enacted by the law-making power, it should clearly appear that the act cannot be supported by any reasonable intendment or allowable presumption.”

Within these rules of interpretation it is difficult to see how this act can be declared unconstitutional and void by this court.

I am, therefore, of the opinion that this motion should be denied.

Motion denied, with costs and printing disbursements.

Herrick, J., concurred.

Herrick, J.:

■ The relator asks that a mamdamus be issued by this court directing the defendant to issue election notices to the clerks of the respective counties of the State, and that he embrace in said election notices the members of assembly required and allowed to be voted for under the apportionment act of 1879, known as chapter 208 of the Laws of 1879, and that he be restrained from accepting and filing certificates of the division of counties into assembly districts under the apportionment act of 1892, known as chapter 397 of the Laws of 1892, and restraining him from doing anything to carry into effect said chapter 397 of the Laws of 1892, upon the ground that said act is unconstitutional and void.

The defendant, by the attorney-general of the State, maintains the constitutionality of the act of 1892, and ealls attention to the fact that the act of 1879 is subject, in some respects, to the same criticism that is passed upon the act of 1892.

It will be seen at once that the questions involved are of grave moment, and of great public importance. The public interests imperatively demand a final determination of this controversy by the court of lasl resort at as' early a date as is consistent with due and proper deliberation. The election is to be held November eighth; the Court of Appeals meets October third.

This court is now in session engaged in hearing cases, and will be so engaged for some time to come; to wait until it adjourns and then take up this case for examination and determination, will postpone the decision until too late a date to permit of its being taken 'to the Court of Appeals in time to have it heard and decided before election. Neither can I, during the term of the court, make such an examination of the case as its importance demands, or, in justice to the court of which I am a member, attempt, during the session, to formulate an opinion upon questions of law so grave as are here involved.

The General Term of the fifth department, in the case of the People ex rel. Pond v. The Board of Supervisors of Monroe Oounty, by a divided court, has decided some, but not all, of the questions involved in this proceeding. I have read the very able and learned opinions by the several members of the court in that case, but am not prepared, without further examination and reflection, to either concur in or dissent from the determination arrived at in that case. But if the court is correct in its reasons for its decision in that case, it seems to me that it must necessarily dispose of this, because, as was pointed out by the attorney-general, the same vice as to' inequality in the apportionment of members of assembly exists in the apportionment act of 1879 as is alleged in regard to the act of 1892. If the act of 1892 is void, because the members of assembly have not been “ apportioned among the several counties of the State * * * as nearly as may be, according to the number of their respective inhabitants” (sec. 5, art. 3 of Constitution), then the act of 1879 is vpid for the same cause, and there is no reason why the court should command the Secretary of State to proceed under that act instead of the one passed in 1892.

Without, then, at this time expressing any opinion as to the constitutionality of either law, and for the purpose of expediting the final determination of the questions involved, I unite with Mr. Justice Mayham in deciding against the application for a mandamus. Let a decree be entered accordingly.

Putnam, J., not acting.

Motion for a onandamns and injunction denied.

      Reported, post, page


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE PENNSYLYANIA RAILROAD COMPANY v. EDWARD WEMPLE, as Comptroller of the State of New York.

      Taxation — of foreign corporations — the business of a railroad company consisting wholly of interstate commerce, is not taxable.

    In a proceeding by writ of certiora/i'i to review the decision of the comptroller of the State of New York in assessing, under chapter 542 of the Laws of 1880, and the acts amendatory thereof, a tax upon a railroad company, it appeared that the company was a foreign corporation, having terminal facilities in New York city, owning and leasing- real estate there, employing workmen and keeping money in banks of that city, but that all these matters were only incidental to its business, which was that of forwarding and receiving passengers and freight between that and other States.
    The comptroller sought to sustain the tax as a tax upon the “business” of the railroad done in the State of New York.

      I-Ield, that the railroad company was not subject to tax.
    That the business done by it in the State of New York was interstate commerce.
    'That the instruments used in that State to carry out its engagements did not constitute a separate business which was taxable.
    That necessarily a part of the business of its interstate commerce was carried on in that State, but that none of such business was carried on wholly within that State.
    Certiorari issued upon the petition of the Pennsylvania Railroad Company to Edward Wemple, as Comptroller of the State of New York, to review an account settled by him against it for taxes and penalties, under chapter 542 of the Laws of 1880, and its amendatory and supplementary acts, for the sum of $40,886.89, a revision of the settlement having been refused after a rehearing, and the taxes and penalties having been paid under protest.

      The defendant Edward. "VYemple, the comptroller, claimed that, by section 3 of chapter 542, Laws of 1880, and the several acts amendatory thereof, it is declared that every corporation organized under the laws of any other State or country, and doing business in this State, with certain exceptions not material here,'shall be subject to and pay a tax into the treasury of the State, as a tax upon its corporate franchise or business, to be computed as follows:
    “ If the dividend or 'dividends made or declared by such corporation * * * during any year ending with the first Monday in November, amount to six or more than six per centum upon the par value of its capital stock, then the tax to be at the rate of one-quarter mill upon the capital stock for each one per centum of dividend so made or declared, or if no dividend be made or declared, or if the dividend or dividends made or declared do not amount to six per centum upon par value of said capital stock," then the tax to be at the rate of one and one-half mills upon each dollar of a valuation of the said capital stock made in accordance with the provisions of the first section of this act.”
    Until the amendment to section 11 of this act, by chapter 501 of the Laws of 1885, the corporations named were liable to a tax upon their capital stock without reference to the amount employed within this State. By this amendment the rule was changed, and the comptroller was authorized and empowered to ascertain, fix and determine the amount of capital employed within this State, “ and to settle an account for the taxes and penalties due the State thereon.”
    • By section 12, whenever a corporation, liable to make reports under any of the provisions of this act, shall make a report which is unsatisfactory to the comptroller, he is authorized to examine, or cause to be examined, the books and records of such corporation; and from said books and records, or from any other data in his possession which shall be satisfactory to him, to fix and determine the amount of tax and penalty due, and to settle an account therefor against said corporation. And section 13 provides for the appointment of a commissioner and the taking of testimony, etc.

      Edmund Randolph Rohinson and Gharles M. Sough, for the relator.

      Simon W. Rosendale, Attorney-General, and Gharles F. Tabor, for the respondent.
   Mayham, P. J.:

The relator is a foreign corporation incorporated under the laws of the State of Pennsylvania as a railroad company, with an authorized capital stock of $151,700, having terminal facilities in the State of New York, and owning and leasing real estate therein, where it receives goods and passeugers for transportation in the transaction of its business as a carrier, and has been since January 1, 1880, engaged in business in the State of New York, which business is not of the class or kind exempted from taxation under chapter 382 of the Laws of 1880.

Prom 1880 to 1889, the relator declines to make any return to the comptroller of this State under the act last referred to, except that it was engaged in interstate commerce, and that any tax imposed upon its business or franchise under this act was in violation of article 1, section 8, subdivision 3 of the Constitution of the United States.

In 1889 the comptroller appointed a special commissioner to examine into the business and capital stock of the relator, situate and employed in the State of New York. On the filing of the report of such commissioner, the comptroller imposed and settled a tax upon the corporation for each year from 1880 to 1889, both inclusive, based upon the value of the capital stock employed in the State of New York as per report filed, which amounted in the aggregate to the sum of $37,169.90, to which lie added a penalty of ten per cent, and gave written notice thereof to said corporation, annexed to which was a statement of the tax so settled.

The corporation, after receiving the notice from the comptroller of the settlement of this tax, applied, on petition and affidavit, to that officer for a revision and readjustment of the several accounts for taxes settled against it, and the comptroller, on the 29th day of September, 1891, made an order declining to make any revision or readjustment of the same, whereupon the relator sued out this writ of certiora/ri.

It can hardly be denied that from the petition, return and evidence in the case the relator is shown to be a foreign corporation, doing business in this State, and as such is liable, under the provision of section 3 of chapter 542 of the Laws of 1880, as amended by chapter 501 of the Laws of 1885, to the tax upon the amount of its capital stock used in its business in this State, unless, as sucli corporation, it has immunity from sucli tax under tlie Federal Constitution relating to interstate commerce. The petition of the relator alleges that no part of its line or lines owned, leased or operated by it is within the State of New York, but admits that it owns and leases lands in the State of New York which it uses in its business. The answer of the defendant denies that the relator, during the years for which the tax is imposed, was wholly engaged in commerce in States other than the State of New York, and between different States, and between the State of New York and different States, and that it is not in any way engaged in carrying freight and passengers within the State of New York, and alleges that it appears from the official certificate of the secretary of internal affairs of Pennsylvania that the eastern terminus of its vast system of transportation is in the city of New York where it has extensive arid valuable terminal facilities and carries on a substantial and important part of its business.

This allegation of the answer seems to be supported by the evidence of one of the officers of the relator’s company taken before the commissioner appointed by the comptroller and made a part of the record of this case. Within the letter of this act we do not think the relator a foreign corporation doing business in this State. (People ex rel. Southern Cotton Oil Co. v. Wemple, 61 Hun, 85.)

The statute under which the comptroller assumes to act authorizes a tax upon the franchise or business of a corporation organized under the laws of any other State or country and doing business in this State, and the comptroller in this case, in settling the account of this tax, expressly states that the same is “ for tax orr franchise or business based on value of capital stock employed in New York State, per chapter 512, Laws of 1880, as amended by chapter 361, Laws of 1881, chapter 151, Laws of 1882, chapter 359 and chapter 501, Laws of 1885, and chapter 353, Laws of 1889, for the ten years ending November 1, 1889.”

It will be seen that this assessment or tax is upon the franchise or business of the relator in this State based upon the value of the capital stock employed therein, and is at the rate per cent per annum allowed by that act, depending upon the dividends declared upon the stock for three years, as the amount of stock and dividends appear from the report of the special commissioner appointed by the comptroller.

Before the amendment of 1885, above referred to, the whole amount of capital stock of the corporation could be taken as the basis of estimating and making the account of this tax by the comptroller. By that amendment nine additional sections were added to the original act of 1880; by section 11, which is the first of the added sections, the comptroller is authorized and empowered to ascertain, fix and determine the amount of capital employed within this State and to settle an account for the taxes and penalties due the State thereon.”

In the case of the People ex rel. Southern Cotton Oil Company v. Wemple (42 N. Y. St. Rep., 634), O’Brien, <7., says: “ The basis of the tax is the amount or portion of its capital in use here in the transaction of its ordinary business. How much that may be in any particular case is generally a question of fact to be determined by the comptroller under the procedure. pointed out by the statute.”

If this corporation is within the taxing power of the State, and the statute under which it is sought to be taxed when applied to it is not in conflict with the provisions of the Federal Constitution, which confers upon congress the exclusive power to regulate commerce between the States; then we think that the determination of the comptroller upon the question of fact, as to what proportion of the capital of the relator was used in this State in the transaction of its business, should not be disturbed by this court.

The rule has long been settled that when a taxing officer is charged with the duty of determining the amount of an assessment for taxation, his determination will not be disturbed unless clearly shown to have been erroneous. (Runk, v. St. John, 29 Barb., 585; Hibernia Nat. Bank v. Lacombe, 84 N. Y., 367, 385; Kelly v. Crapo, 45 id., 86; People ex rel. American Contracting and Dredging Company v. Wemple, 60 Hun, 234, affirmed, and the doctrine restated, 129 N. Y., 558, 565.)

We are, then, left to consider the remaining question as to the power of the State to tax the relator on its franchise or business, based upon ijs capital and stock employed in this State. If we are right in the conclusion we have reached above, the only ground upon which this tax can be set aside in these proceedings is that of want of power in the State to impose tax upon the relator on the ground that the relator’s only business in this State is that of conducting interstate commerce.

It is clear that a tax on a foreign corporation doing business cannot be assessed in this State on its. franchise, as the franchise is not granted in this State, and would no more be the subject of taxation here than would its property owned and used by it in another State. In People v. Equitable Trust Company (96 N. Y., 393), it was held that non-resident’s property having no legal situs here, and business not carried on here, are beyond the jurisdiction of this State and not subject to 'taxation here, and a defendant, being a foreign corporation, could not be taxed here in reference to its property situate out of the State, and its, business not done here. Nor could it be taxed on account of its corporate franchise, as that was not given by our laws, was dependent upon the laws of the State of its creation, and had no existence separate therefrom. This seems to be conceded by the defendant’s counsel, and it is also conceded that the tax imposed by the comptroller is not imposed upon its property, but for the privilege which is extended to it by the State, of doing business here as a corporation in its corporate name. (People ex rel. Southern Cotton Oil Co. v. Wemple, 42 N. Y. St. Rep., 635.)

In this case the court also holds that “ the State has the power to exclude corporations of other States from doing business within its. jurisdiction. If, however, it permits them to come here and transact; their business, it may impose a tax upon them for this privilege; and this is hot a regulation by the State of interstate commerce, but a lawful exercise of the power of taxation upon corporate bodies, that for the time being are within its jurisdiction for that purpose.”

The learned judge in this opinion, in a brief but comprehensive manner, defines the boundary line between State and Federal jurisdiction as follows: The only limitation upon' the power of a State to exclude a foreign corporation from doing business within its limits, or to exact conditions for such a privilege, arises where the corporation is in the employ of the Federal government, or where its business is strictly commerce, interstate or foreign.”

It is not pretended that the relator is in the employ of the Federal ' government. Nor can it, we tlrink, be successfully maintained that its business is not “ strictly commerce, interstate or foreign.” The petition, return and evidence discloses that a large per cent of its business in the State of New York is delivering freight and passengers from other States into this State, and receiving passengers and freight from this State for transportation to other States, yet as a corporation it keeps a large number of workmen, clerks and agents employed in this State, owns and uses in its business a large amount of real estate in this State, and leases and uses in its corporate business, and for the same use and'purposes leases and occupies valuable real estate in this State; keeps for the use of its corporate business large balances in banks in this State, and does other acts in the conduct of its corporate business; and it was suggested by the learned counsel for the defendant on the argument that, as between the State of New Jersey and New York, the jurisdiction of New York extended to the center of the Hudson river, the relator’s transportation line extended through the territorial jurisdiction of this State from that point to the docks and slips in New York city, and that, therefore, all the business done by the relator in New York was carried by it through New York territory; and that the allegation of the petition, that “no part of its (relator’s) lines, or of the lines leased or operated by it, is within the State of New York, and the compensation which it receives for transportation is entirely for transportation in States of the Union, other than the State of New York, or for transportation between the State of New York and other States of the Union,” is not sustained by the facts.

No point is made as to this upon the defendant’s brief, and as the Hudson river is at the point where the relator’s line crosses a navigable stream we will not stop to discuss that point. But, independently of that suggestion, we think it sufficiently appears, as we have shown, that the sole business of the relator in the State is that of interstate commerce, as a great railroad corporation doing business in and between many States in the Union, with terminal facilities, and property in the city of New York, it established offices, kept employees, made bank deposits, and in that manner facilitated its general interstate business, and thus took itself out of the taxing power of the State under chapter 542 of the Laws of 1880, and its amendments.

If this tax was aimed at the business of the relator transacted in this State, other than that of. commerce between different States, it is not in violation of the Federal Constitution, and the power of this State to tax it for the privilege of doing business has not only been sustained by the State courts, but by the United States Supreme Court 'as well.

In the People v. Home Insurance Company (92 N. Y., 340, 341), Huger, J., says: “We have before seen that the State legislature had an undoubted right, by virtue of its jurisdiction over corporations organized under its laws, to levy such tax upon their business and privileges, aside from all property taxation, as in its discretion it might deem just and proper in order to provide revenues for the State.”

In the same case, on appeal to the United States Supreme Court (134 U. S., 594), Field, J., says: “No constitutional objection lies in the way of a legislative body prescribing any mode of measurement to determine the amount it will charge for the privileges it bestows.”

It is true that this was said in reference to the granting of a franchise and the right to do business to a domestic corporation, the same case being in the Federal court on the question of the right to tax stock represented in government bonds. It is insisted by the relator that the United States Supreme Court, in the case of Gloucester Ferry Company v. Pennsylvania (114 U. S., 196), is analogous to the case at bar and decisive of it.

In that case the sole business of the ferry company was to carry passengers and freight across the Delaware river, from Gloucester, N. J., to Philadelphia, Penn. Under the laws of Pennsylvania the State sought to tax the ferry company. There was no evidence that the ferry company had any property or did any business in the State of Pennsylvania, and the court held that as the sole and exclusive business of the ferry company was to carry passengers and freight from one State to the other, .it was clearly interstate commerce and its control was in the Federal jurisdiction.

The business of the ferry company did not extend through several States, nor did it carry on a business in the city of Philadelphia, and the case was, therefore, in that respect, like the one at bar. In the Federal courts it has been held that a license cannot be charged in one State upon a drummer or peddler from another State, on the ground that such license is a restriction upon interstate commerce, which belongs solely to the Federal government. But I have been ■referred to no case where that doctrine has been extended to corporations formed in one State and doing business in another, except where the business is confined exclusively to interstate commerce.

In the case of People v. Horn Silver Mining Company (105 N. Y., 76), it was held that a foreign corporation organized under the laws of the Territory of Utah for the mining and refining of silver, the business was all done in Utah and Chicago, but its products were sent to New York for further refining and sale; it was held that it did not do a manufacturing business in New York so as to .exempt it from taxation, but that as it was refining and selling here it was doing business in the State so as to subject it to taxation under the Laws of 1880.

On appeal to dio Supreme Court of the United States that court, in affirming the judgment of the Court of Appeals (143 U. S., 311), uses this language: The objection that it (this tax) operates as a direct interference with interstate commerce we do not think tenable. The tax is not levied upon articles imported, nor is there any impediment to their importation. * * * The tax is levied only upon the franchise or business of the company.” Thus holding that the tax may be imposed upon the business, and at the same time holding that such a tax is not an undue interference by a State with interstate commerce.

In the Western Union Telegraph Company v. Massachusetts (125 U. S., 530); Massachusetts v. Western Union Telegraph Company (141 id., 40); Pullman's Car Company Case (Id., 18); Maine v. Grand Trunk Railway Company (142 id., 211), the United States Supreme Court have upheld the right to tax companies doing business by the State authorities. It is true that the courts have, in some instances, been divided, and in some cases the decisions have been put upon the ground that a large part of the corporate property was in the State where the tax was imposed. In the case at bar it seems that the only actual business done by relator in this State was to receive and discharge freight and passengers carried between the States.

From the above references it is clear that if the business of the relator transacted in this State is only an incident to its interstate carrying trade between this and other States, then it cannot be said -that it is carrying on such a business within this State as to subject .it to the taxing power of the State; and while'it is difficult to determine the exact point at which the authority of the State ends and the exemption under the Federal authority commences, we are inclined to the opinion that the business transacted by the relator in this State was not such a business carried on in this State as to bring it within the taxing power of the Comptroller, and that the writ of ■certiorari should, therefore, be sustained.

The assessment, and order of the Comptroller must be reversed and the tax remitted to the relator, with costs.

Herrick, J.:

Concededly, the tax imposed by the comptroller upon the relator is not a franchise tax, nor a tax upon its property located in this State. It is a tax upon its business. 'What is that business ? The relator is engaged in transporting freight and passengers through the States of New Jersey and Pennsylvania; it has terminal facilities in the city of New York, where it discharges freight and passengers brought over its lines from without the State, and receives freight and passengers to be transported over its lines to places beyond the State, but none to be transported to points within the State. The only business that is done within the St^te by the relator is to receive freight and passengers to be sent out of the State, and to receive freight and passengers shipped from without the State to this State.

The business described is commerce between the States, and a tax upon it is illegal. (Gloucester Ferry Co. v. Penn., 114 U. S., 196; Robbins v. Shelby Co., 120 id., 489; Leloup v. Mobile, 127 id., 640.)

The leasing of property in which to carry on its business; the employing and paying workmen, clerks and agents within the State and paying them here; the keeping of money in New York banks; depositing and drawing out the same from time to time, do not constitute a business within the State; all of these things are but incidents of the business carried on by the relator; the machinery by which .it is transacted is not the -business itself. There is a clear distinction between this case and that of the Southern Cotton Oil Company (61 Hun, 83); there the court said the company “maintained a'sales agency in the city of New York ; sold the product of its mills- in this State; refined crude oil in this State; maintained a deposit or storage of its products, and kept on deposit in the banks-of New York large sums of money for the use of the relator, and for carrying on its business.”

That describes a business, not the incidents to, or the means by which it is carried on, but the business itself, all of which was don& within this State.

This is not the case of a copartnership or corporation having its-principal place of business in New Jersey, or some other State, establishing a branch-house in this State, and carrying on business-here; bringing its property here, and mixing it with the general mass of property and commercial capital of the State. All corporations engaged in transporting freight and passengers between and through the States must have the means to effect such transportation, and must have terminal facilities; and while the property owned by them in the several States and used to carry on such business may be subject to a property tax by the respective States, yet-the business itself cannot be. And the caring for and maintaining-the means or instruments of transportation, the owning, leasing or-management of dejiots, ware-houses or docks, the employing of men necessary to carry on such transportation is not a separate and distinct business which can be taxed.

Of course, some part of the relator’s business is carried on in this-State; necessarily so, it would not be interstate commerce if part of it was not carried on in different States; but, on the other hand, it appears that none of the relator’s business is carried on wholly within this State, that is, none of its transporting business; that which is-done wholly within this State is not business, but merely the necessary incidents of business. Commerce between the States being the only business in which the relator is engaged, and the tax in question being levied not as a property or franchise tax, but as a tax upon its business, I think the determination of the comptroller was erroneous and should he reversed.

Let an order be entered accordingly, with ten dollars costs and printing and other disbursements.

Putnam, J., concurred'.

Writ of certiorari allowed; determination of comptroller reversed,, with ten dollars costs and printing and other disbursements.