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Art. III, § 19 Audit of Private Claims Against State

road to compensate the abutting property owners for any injury to their property by the construction or operation of the road."

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Judicial review of unfavorable report of commissioners.-Though it is provided that the determination of the commissioners "confirmed by the court may be taken in lieu of the consent of the property owners and though the Appellate Division is empowered thereby to review a favorable report of the commissioners, no express authority is given that court to take action on an unfavorable report. In re Nassau Electric R. Co., (1901) 167 N. Y. 37,,60 N. E. 279, reversing 6 App. Div. 141, 40 N. Y. S. 334. See also Matter of East River Bridge Co., (1894) 75 Hun 119, 27 N. Y. S. 145, appeal dismissed in (1894) 143 N. Y. 249, 38 N. E. 283. "It does not follow from this, however, that the court has no authority to set aside such a report for fraud, mistake or gross irregularity. Unless the appointees of the court keep within the law, as well as its own order, it necessarily has power to interfere, not only by way of review as upon appeal or certiorari, but in the exercise of original jurisdiction flowing from the power to appoint, as otherwise the object of the appointment would be defeated by the misconduct of the commissioners. When they make an unfavorable report no confirmation is necessary, but the commissioners are not a law unto themselves, and their determination, when made in violation of law, is not such a determination as the court is obliged to accept from its own appointees." Matter of Nassau R. Co., supra. Accordingly, the court reversed an order of the Appellate Division denying an application to set aside a report on the ground as stated "that the determination of the commissioners herein being adverse to the construction of the railroad of the petitioner, the Appellate Division has no duty to perform and can neither confirm the report nor set it aside.” ” The court pointedly refused, however, to decide whether the Appellate Division had any further powers than those set out above.

Review of action of court in confirming or refusing to confirm report of commissioners.— With reference to a former constitutional provision giving the General Term of the Supreme Court the powers here conferred on the Appellate Division it has been held that the confirmation of a commissioner's report was a matter of judicial discretion and that accordingly the decision of the General Term to confirm, or not to confirm, a report was not subject to review on questions of fact in the Court of Appeals. Matter of East River Bridge Co., (1894) 143 N. Y. 249, 38 N. E. 283, dismissing appeal from 75 Hun 119, 27 N. Y. S. 145; In re Kings County El. R. Co., (1880) 82 N. Y. 95, affirming 20 Hun 217. The same doctrine has been recognized as applicable to the Appellate Division. Matter of Public Service Commission, etc., (1913) 159 App. Div. 306, 144 N. Y. S. 228.

19. Private claims against state not to be audited by legis

lature.

The Legislature shall neither audit nor allow any private claim or account against the State, but may appropriate money to pay such claims as shall have been audited and allowed according to law.

Amendment of 1874.

Purpose of section. This section "was intended to remedy the manifest evils of special legislation in the interest of private claimants, and to deprive the legislature of the power to pass laws which directly, and of their own force, should allow and fix the amount of private claims against the state. The practice which had before prevailed was subject to great abuses. The legislature could not, in the majority of cases, act intelligently upon the

Audit of Private Claims Against State

Art. III, § 19

subject, and was subject to influences which had led, and were likely to lead, to acts of legislation depleting the public treasury for the benefit of claimants whose claims had no foundation in law or equity. The section interposed an obstacle in the path of persons asserting unfounded claims against the state. It required their audit and allowance by some officer, board or tribunal designated by law, before the legislature could make an appropriation for their payment." Cayuga County v. State, (1897) 153 N. Y. 279, 47 N. E. 288. Allowance of public claim.- The prohibition of this section extends only to claims in behalf of private interests and does not embrace claims of a public character. "The word 'private' is descriptive, and was used as the antithesis to the word 'public; ' and, by necessary implication, claims of a public nature are not included within the inhibition." Per Andrews, Ch. J., in Cayuga County v. State, (1897) 153 N. Y. 279, 47 N. E. 288; People v. Land Office Com'rs, (1912) 207 N. Y. 42, 100 N. E. 735, affirming 152 App. Div. 543, 137 N. Y. S. 393. Thus, chapter 255, Laws of 1909, commanding the commissioners of land office to settle at a just sum certain claims of the Cayuga Nation of Indians is valid, the claims allowed by that act being made by an independent tribal organization and hence public in their nature. People v. Land Com'rs, supra. Similarly, chapter 428, Laws of 1885, recognizing the right of Cayuga county to reimbursement from the state for moneys expended in the prosecution of certain criminals is constitutional, the claim of a county against the state being public. Cayuga County v. The State, supra.

Legalization of invalid claim.- The legislature may legalize a claim against the state which though technically invalid is yet morally and equitably binding without in any manner contravening this section. Wheeler v. State, (1901) 190 N. Y. 406, 83 N. E. 54, 123 A. S. R. 555, reversing 118 App. Div. 913, 103 N. Y. S. 1150; O'Hara v. State, (1889) 112 N. Y. 146, 19 N. E. 659, 8 A. S. R. 726, 2 L. R. A. 603; Cole v. State, (1886) 102 N. Y. 48, 6 N. E. 277; American Bank Note Co. v. State, (1901) 64 App. Div. 223, 71 N. Y. S. 1049. See also Cayuga County v. State, (1897) 153 N. Y. 279, 47 N. E. 288. The legislature may ratify the claim to compensation of one who has voluntarily furnished property or rendered services to the state. "It would certainly be strange, and would subject the state to great loss and damage if in cases of emergency, and when legislative authority could not be previously obtained to authorize the same, that its servants should be powerless to obtain labor and materials necessary to save it from the destruction of its property, and be compelled to lose advances made in reliance upon the justice and honor of the state, and believing that they would be subsequently reimbursed for expenditures made for its benefit. It cannot, we think, be said that the constitutional provision was intended to disable the state from paying for property or valuable services received by it from individuals, because they were furnished under the stress of an imminent necessity, without previous authority of law. Although such acts constituted no legal claim against the state, and could not be enforced in an action of law, they formed, in justice and right, irresistible claims upon its honor and are, we think, within the power of the legislature to legalize, and, when authorized and approved by legal tribunals, within its power to provide for and pay." Per Ruger, Ch. J., in O'Hara v. State, (1889) 112 N. Y. 146, 19 N. E. 659, 8 A. S. R. 726, 2 L. R. A. 603; Cole v. State, (1886) 102 N. Y. 48, 6 N. E. 277; American Bank Note Co. v. State, (1901) 64 App. Div. 223, 71 N. Y. S. 1049. See further as to this point Art. III, § 18, ch. XI; Art. III, § 28; Art. VIII, § 9; Art. VIII, § 10. In like manner chapter 767, Laws of 1900, authorizing the Court of Claims to determine and allow a claim of a purchaser of public land for damages suffered by reason of failure of the state's title to a portion of the lands is not obnoxious to this section. Wheeler v. State, (1907) 190 N. Y. 406, 83 N. E. 54, 123 A. S. R. 555, reversing 118 App. Div. 913, 103 N. Y. S. 1150; Wheeler v. State, (1904) 97 App. Div. 276, 90 N. Y. S. 18.

Art. III, § 20

Appropriation of Public Property

Delegation of power to audit or allow private claim.—This section, while effectually preventing legislative action looking directly to the audit or allowance of any private claim against the state, leaves the legislature competent to provide for such audit and allowance through the medium of some appropriate tribunal. Coxe v. State, (1894) 144 N. Y. 396, 39 N. E. 400; O'Hara v. State, (1889) 112 N. Y. 146, 19 N. E. 659, 8 A. S. R. 726, 2 L. R. A. 603; Cole v. State, (1886) 102 N. Y. 48, 6 N. E. 277. See also Swift v. State, (1882) 26 Hun 508, reversed on other grounds, (1882) 89 N. Y. 52. Accordingly, the Act of 1885 (ch. 238, Laws of 1885), providing for the hearing and determination before the Board of Claims, of the claims of certain persons while acting as captain and harbor-masters of the port of New York is not in contravention of this section. "It is apparent that the act does not come within the prohibition against the auditing by the legislature of any private claim. The act does not purport to audit the claims. This the legislature could not do, however just the claim, or however legal it might be if preferred against an individual. The constitution prohibits the legislature from exercising the power of itself auditing claims which is in its nature judicial, but provides for the payment of claims which shall have been audited or allowed according to law; thus recognizing the power of the legislature to provide by law for the auditing and allowing by some appropriate tribunal of claims against the state. It is contended, however, that the act does not come within the prohibition against allowing claims against the state. It must be observed that the act . . . does not even assume to allow these claims. It simply submits them to the arbitrament of the board of claims, a judicial body established for the purpose of passing upon claims against the state. It gives jurisdiction to that tribunal to hear and determine those claims, but does not dictate how it shall decide upon them. The only limitation upon the power of the board to decide is, that it shall confine itself to a reasonable compensation for services performed and expenses incurred during the year specified. Under the authority conferred by the act, that tribunal, if it deemed the claims unjust, might have rejected them in toto. The power to hear and determine includes power to reject as well as to allow. Construing the constitutional restriction literally, it was not violated by giving to the board jurisdiction to hear and determine. The enactment was consequently purely legislative and in no sense an exercise of judicial power." Cole v. State, (1886) 102 N. Y. 48, 6 N. E. 277.

§ 20. Appropriation of public property for local or private purposes; two-thirds vote required.

The assent of two-thirds of the members elected to each branch of the Legislature shall be requisite to every bill appropriating the public moneys or property for local or private purposes.

Const. 1821, Art. VII, § 9; amended, Const. 1846, Art. I, § 9; continued without change in Const. 1894, Art. III, § 20.

I. Generally, 356.

II. Public moneys and property, 357. III. Local and private purposes, 359.

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I. GENERALLY.

Evidence of passage. The courts may look beyond the printed statute in ascertaining whether a bill within the scope of this section has received the requisite two-thirds vote. Rumsey v. New York, etc., R. Co., (1891) 130 N. Y. 88, 25 N. E. 763; People v. Highway Comr's, (1873) 54 N. Y. 276, 18

Appropriation of Public Property

Art. III, § 20

Am. Rep. 581. See also People v. Purdy, (1841) 2 Hill 31. Where reference is made to the original statute and where the certificates of the presiding officers of the two houses are defective in not stating the facts with reference thereto, resort may be made to the journals of the legislature to ascertain the sufficiency of the passage. New York, etc., Bridge Co. v. Smith, (1896) 148 N. Y. 540, 42 N. E. 1088, affirming 90 Hun 312, 35 N. Y. S. 920; Rumsey v. New York, etc., R. Co., (1891) 130 N. Y. 88, 28 N. E. 763. See also People v. Devlin, (1865) 33 N. Y. 269, 88 Am. Dec. 377. Thus, where the session laws show an act to have been passed, three-fifths being present, and the certificates of the presiding officers of both houses as attached to the original bill show only that three-fifths were present, recourse may be had to the legislative journals. Matter of N. Y. & Long Island Bridge Co., supra. Authorization of future appropriations.— The Grade Crossing Act (§§ 62-66 of the Railroad Law), authorizing the public service commission to compel a railroad to eliminate dangerous grade crossings and imposing a proportion of the cost upon the state and the village wherein the change is made, does not appropriate public moneys for local or private purposes, inasmuch as it actually makes no appropriation whatever, but merely authorizes an appropriation to be made annually by the legislature in order to pay the share of the state. Only the bill actually making such appropriation requires the assent of two-thirds of the members of the legislature. Matter of New York Cent., etc., R. Co., (1910) 136 App. Div. 760, 121 N. Y. S. 524.

Meaning of "appropriating."—" The word 'appropriating' as used in this section of the constitution, refers to a transfer of public property as a gift or gratuity, and not to some right in or privilege connected with property belonging to the state in return for an equivalent." Per O'Brien, J., in Sweet v. Syracuse, (1891) 129 N. Y. 316, 27 N. E. 1081, 29 N. E. 289, reversing 60 Hun 28, 14 N. Y. S. 421. In the same case, Earl, J., delivering the opinion of the court on the reargument, said: "The word 'appropriating' as used in the constitutional provision manifestly has no reference to the appropriation of public money or property where the state gets an equivalent." Wherefore, it was held that a statute (ch. 291, Laws of 1889, as amended by ch. 314, Laws of 1890) granting to the city of Syracuse the right to take water from a certain lake used by the state as a reservoir and feeder to the Erie canal makes no appropriation of public property within the meaning of this section in so much as under the arrangement contemplated by the statute the reservoir would be enlarged and forever maintained at the expense of the city. "There are two parties to the bargain, each of which gets some advantage. The state gets a larger reservoir from which to supply the needs of the Erie canal, and has the dam kept in repair free of expense to it. After the so-called grant or license to the city of Syracuse the state has still the same right and control over the water for every purpose needed that it ever had; and it is impossible to perceive how, under such circumstances, it can be said that the act of 1890 appropriates money or property of the state for a local purpose, within any fair meaning of the terms used in the constitution."

II. PUBLIC MONEYS AND PROPERTY.

The term "public moneys" has reference to the moneys of the state. Seneca v. Allen, (1885) 99 N. Y. 532, 2 N. E. 459; Mayor v. Gorman, (1898) 26 App. Div. 191, 49 N. Y. S. 1026; People v. Murray, (1896) 4 App. Div. 185, 38 N. Y. S. 909, affirmed in (1896) 149 N. Y. 367, 44 N. E. 146, 32 L. R. A. 344. See also People v. Ronner, (1906) 185 N. Y. 285, 77 N. E. 1061, affirming 110 App. Div. 816, 97 N. Y. S. 550.

Revenue from local tax.-"The public moneys referred to in art. III, sec. 20, of the constitution, are the public moneys of the state as contradistinguished from public revenues levied for local purposes by towns, cities and villages under state authority, or moneys which by a long course of

Art. III, § 20

Appropriation of Public Property

legislation, as in the case of excise moneys, have been treated as standing in the same situation." Per Andrews, Ch. J., in People v. Murray, (1896) 149 N. Y. 367, 44 N. E. 146, 32 L. R. A. 344, affirming 4 App. Div. 185, 38 N. Y. S. 909; People v. Ronner, (1906) 185 N. Y. 285, 77 N. E. 1061, affirming 110 App. Div. 816, 97 N. Y. S. 550. Nor does the inhibition of this section apply to a statute the scheme of which is to raise revenue for the general government of the state and for the various local governments within the state by the apportionment of the proceeds realized from a tax between the state and various local governments. In such a case the portion allotted to the local governments becomes the property of those governments at the moment of its collection and is never mingled with the general public funds. Thus, chapter 729, Laws of 1905, providing for the taxation of debts secured by mortgages is not within the requirements of this section though it directs that one-half of the funds realized from the tax in a locality be given thereto. People v. Ronner, (1906) 185 N. Y. 285, 77 N. E. 1061, affirming 110 App. Div. 816, 97 N. Y. S. 550. Similarly, the provision of the Liquor Tax Law of 1896 (ch. 112, § 13), that two-thirds of the excise taxes collected thereunder on the liquor traffic of a city or town shall belong to such city or town, did not render the assent of two-thirds of the members of each house necessary to the passage of that law. "The act of 1896, . . . appropriates to the towns and cities the two-thirds of the excise taxes which may be collected under the act. But it is an appropriation which operates on the fund at the very moment of its collection. The two-thirds so appropriated never reaches the treasury of the state and never bears the impress of state money." People v. Murray, (1896) 149 N. Y. 367, 44 N. E. 146, 32 L. R. A. 344, affirming 4 App. Div. 185, 38 N. Y. S. 909.

Fees of local officers.— An act (ch. 213, Laws 1879) directing “that the commissions which, under former laws, were payable to the county treasurers as their own compensation, be retained by or allowed to them for the benefit of their respective counties instead of being retained by them for their own benefit," is not an appropriation of public money within this constitutional requirement. Seneca v. Allen, (1885) 99 N. Y. 532, 2 N. E. 459. An act (ch. 532, Laws 1890) which provides for the compensation of the sheriff of the city and county of New York, and devotes to that purpose a portion of the fees received by him in his official capacity does not appropriate "public moneys." New York v. Gorman, (1898) 26 App. Div. 191, 49 N. Y. S. 1026.

Right to take public waters as public property.- While the state has the power to regulate the use and diversion of public waters, it has no property in them within the meaning of this section. A grant of the right to divert and use such waters is not, therefore, an appropriation of public property. "It is a principle, recognized in the jurisprudence of every civilized people from the earliest times, that no absolute property can be acquired in flowing water. Like air, light, or the heat of the sun, it has none of the attributes commonly ascribed to property, and is not the subject of exclusive dominion or control. As Blackstone observes (2 Bl. Com. 18): 'Water is a movable, wandering thing, and must of necessity continue common by the law of nature; so that I can have only a temporary, transient, usufructuary property therein.' While the right to its use, as it flows along in a body, may become a property right, yet the water itself, the corpus of the stream, never becomes or, in the nature of things, can become, the subject of fixed appropriation or exclusive dominion, in the sense that property in the water itself can be acquired, or become the subject of transmission from one to another. Neither sovereign nor subject can acquire anything more than a mere usufructuary right therein, and in this case the state never acquired, or could acquire the ownership of the aggregated drops that comprised the mass of flowing water in the lake and outlet, though it could and did acquire the right to its use. These propositions have been often stated by jurists and in

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