So in People ex rel. Kellner v. New York (1893) 3 Misc. 131, 23 N. Y. Supp. 1062, where, by reason of a statute prohibition a transaction of city authorities was technically illegal, the court sustained an enabling act which authorized the city authorities to hear and determine a claim growing out of such transaction, and allow all such sums as they might deem right in equity and justice, and the statute of limitations was not to be deemed a bar to the claim. The city had received the benefit of the contract and was justly bound to pay the claim, although, under the existing law, the claimant could not maintain an action thereon.

There was no moral obligation to reimburse persons called into the military service of the United States by operation of the Federal draft laws, and the drafted men's act of 1892, chap. 664, was declared invalid, because, in effect, it made a gift to the persons inIcluded in its provisions. "Every government must possess the inherent right or power to call upon its citizens to perform military duty in time of war. The exercise of this power involves the right of self-preservation, and that right in the government imposes upon the citizen a corresponding duty to render such services whenever the emergency arises, and it is demanded of him. The government must necessarily be the judge of the necessity for requiring the performance of this duty." The individuals selected in the manner provided by the act of Congress "were under obligations to serve, but they were permitted to commute such services, or pay in lieu thereof to the government a specified sum of money." The individuals mentioned in the act have no claim, legal or equitable, against the town or county where the money was to be raised by taxation. "Those who actually served under the conscription only discharged their obligations to the general government. Those who commuted simply paid so much money in order to be relieved from the obligation to render military service," and a tax to reimburse them would be a gift and void. Bush v. Orange County (1899) 159 N. Y. 212, 45 L. R. A. 556, 70 Am. St. Rep. 538, 53 N. E. 1121, citing Taber v. Erie County (1892) 131 N. Y. 432, 30 N. E. 177, where claims for reimbursement presented by persons who had furnished substitutes were rejected.

"If the state, in carrying out a policy of justice through its legislature, appropriates money to pay a debt or to repair an injury inflicted upon an individual or a locality, obligatory upon it in honor and justice, that is but a part of its legitimate functions and duties as a sovereign, and the purpose in such case would seem to be

public." Waterloo Woolen Mfg. Co. v. Shanahan (1891) 128 N. Y. 345, 14 L. R. A. 481, 28 N. E. 358.

A town was held to be under no moral obligation to reimburse a collector for town taxes collected by him, and deposited in a bank which afterwards failed, causing a loss of the money, and the legislature had no power to direct the levy of a tax upon the town for such reimbursement. Mercer v. Floyd (1898) 24 Misc. 164, 53 N. Y. Supp. 433.

See, as to highway damages, Re Borup (1905) 182 N. Y. 222, 74 N. E. 838.

MUNICIPAL CORPORATIONS.

Aid to private corporations.-In Clarke v. Rochester (1864) 28 N. Y. 605, the act of 1851, chap. 389, which authorized the city, on specified conditions, to subscribe to the stock of a railroad company, was sustained. A similar statute was sustained in Benson v. Albany (1857) 24 Barb. 248; Bank of Rome v. Rome (1858) 18 N. Y. 38; People ex rel. Doty v. Henshaw (1870) 61 Barb. 409.

The power to authorize a municipal corporation to take stock in a railroad company was again declared in People ex rel. Albany & S. R. Co. v. Mitchell (1866) 35 N. Y. 551, but such a municipal corporation had no inherent power to subscribe for stock, and could not do so without legislative authority.

The power of the legislature to compel a municipal corporation to take stock in a private company was considered in People ex rel. Dunkirk, W. & P. R. Co. v. Batchellor (1873) 53 N. Y. 128, 13 Am. Rep. 480, and it was there held that the municipal corporation could not be compelled to take such stock against its will and without its consent. Municipal corporations are "created by the legislature as instrumentalities of the government, and, so far as legislation for governmental purposes is concerned, are absolutely subject to its control." Such municipal corporations cannot be compelled to enter into contracts where the purpose is private. The court distinguished People ex rel. McLean v. Flagg (1871) 46 N. Y. 401, which sustained a mandatory statute directing the construction of a highway in a town, requiring the creation of a town debt by the issue of its bonds, and imposing a tax upon the property of the town to pay the bonds without the consent of the citizens or town authorities.

The legislature had power to prescribe the method by which a town might determine its assent to a proposition to aid a corporate enterprise; it might take from the taxpayers the power to determine this question and transfer it to a town officer, and add or modify con

ditions respecting the determination of such assent. Duanesburgh v. Jenkins (1874) 57 N. Y. 177.

In Williams v. Duanesburgh (1876) 66 N. Y. 129, the court said that even if a mandatory statute requiring a town to subscribe for railroad stock and issue bonds for its payment was invalid, such bonds, having been issued under the statute, and without judicial compulsion, were binding obligations, and the town was deemed to have acted voluntarily in issuing them.

The power of a municipal corporation to aid a private enterprise was distinctly limited in Weismer v. Douglas (1876) 64 N. Y. 92, 21 Am. Rep. 586, which held unconstitutional an act authorizing a village to issue its bonds and raise money to be used for the purchase of stock of a manufacturing corporation. Observing that it was a private undertaking for private business and profit, and that the benefit to the public was remote and consequential, the court say that "the legislature may not empower a majority to compel a minority to enter into a private business, whether the form of affecting the end be by a direct statute or through the operation of taxation."

Bonds. The legislature has power to impose on municipal bonds the characteristics of commercial paper and give them the element which furnishes protection to a bona fide holder where authority is apparent, but not real. Alvord v. Syracuse Sav. Bank (1885) 98 N. Y. 599.

Civil service.-The legislature had power by the act of 1887, chap. 464, to impose a specific duty on municipal corporations in relation to the employment of honorably discharged Union soldiers and sailors. Persons having a preference under the statute are entitled to enforce their rights by mandamus. The legislature may lawfully provide for the doing of public works in such manner and with such agencies as it deems proper. Re Sullivan (1890) 55 Hun, 285, 8 N. Y. Supp. 401.

Claims. The legislature, by statutes, submitted to the electors of a town the question whether a certain private claim against the town should be paid. The electors rejected the claim, and afterwards an act was passed requiring the payment of the claim by the town, and directing that a tax be raised for that purpose. This legislation was declared valid in Guilford v. Chenango County (1855) 13 N. Y. 143. The legislature was not bound by the adverse vote of the electors. It was not a judicial determination.

In Rider v. Mt. Vernon (1895) 87 Hun, 27, 33 N. Y. Supp. 745, the court sustained a statute which prescribed a short period for the presentation of claims for damages against the city, and in reply to

the argument that statutes of limitations must be uniform through the state, and can only be established by a general act of the legislature, said: "There is no provision of our state Constitution which requires that laws shall be uniform in their operation throughout the state, and the whole matter of municipal liability is subject to legislative control. The legislature may prohibit all actions of this character against municipalities, and it may impose such conditions precedent to the maintenance of such actions as it sees fit. And it may prescribe one limitation for one city and another period for others."

The legislature has power to authorize the presentation of an amended claim against a municipal corporation where the claim filed under a prior statute is defective and cannot be maintained, and may limit the amended claim to the amount included in the original claim. In this case the claim was for damages caused by the change of grade of a street, for which the common law gave no right of action. The subject, therefore, being purely of legislative cognizance, that body had the right to prescribe the conditions on which the claim might be presented and maintained. People ex rel. Grout v. Stillings (1902) 75 App. Div. 569, 78 N. Y. Supp. 333.

Enabling act. The legislature has power to pass an enabling act authorizing the proper officers of a municipal corporation to examine a claim against it which is illegal under an existing statute, and to fix and determine what sum, if any, "is justly due and owing and right in equity and justice," and such an act may waive the statute of limitations. People ex rel. Kellner v. New York (1893) 3 Misc. 131, 23 N. Y. Supp. 1060.

Labor law. The Buffalo superior court (People ex rel. Warren v. Beck [1894] 10 Misc. 77, 30 N. Y. Supp. 473) sustained a provision in the Buffalo charter that contractors with the city shall bind themselves not to accept more than eight hours as a day's work, nor to employ any man or set of men for more than eight hours in twenty-four consecutive hours except in case of necessity. The superintendent of a contracting company was convicted of a misdemeanor for a violation of this provision. This conviction was affirmed by the superior court, but was reversed by the court of appeals ([1894] 144 N. Y. 225, 39 N. E. 80) on the ground that the charter provision was not penal, and could not be made the basis of a criminal prosecution, but without considering the constitutionality of the statute. A similar provision in the general labor law was declared unconstitutional in People ex rel. Rodgers v. Coler (1901) 166 N. Y. 1, 52 L. R. A. 814, 82 Am. St. Rep. 605, 59 N. E. 716. See

also People ex rel. Cossey v. Grout (1904) 179 N. Y. 417, 72 N. E. 464.

Loans for highways.—The legislature may authorize a loan upon a town which includes villages for the purpose of establishing or improving a highway which does not pass through any village. People ex rel. Weeks v. Queens County (1879) 18 Hun, 4.

Local affairs.-The legislature possesses full power, except as restricted by the Constitution, to control by direct legislation the local affairs of a public nature of any of the civil divisions of the state. People v. Tweed (1875) 63 N. Y. 202, citing People ex rel. McLean v. Flagg (1871) 46 N. Y. 401. This principle was applied in People ex rel. Cox v. Special Sessions Justices (1876) 7 Hun, 214, sustaining the act which conferred on a municipal board of health power to make ordinances relating to the administration of its affairs. New York v. Fulton Market Fishmongers' Asso. (1886) 3 How. Pr. N. S. 491; Whitney v. New York (1855) 6 Abb. N. C. 329; Wilson v. Whitmore (1895) 92 Hun, 466, 36 N. Y. Supp. 550.

New civil divisions.-The power of the legislature to establish new civil divisions of the state for general and permanent purposes of civil government, including, in the discretion of the legislature, existing civil divisions usually known as municipal corporations, provided the constitutional powers and capacities of such municipal corporations are not thereby impaired, was declared in People ex rel. Wood v. Draper (1857) 15 N. Y. 532, sustaining the metropolitan police district act of 1857, which established a police district to be composed of the counties of New York, Kings, Westchester, and Richmond.

The act of 1865, chap. 554, creating a capital police district, as amended in 1866, chap. 483, was sustained in People ex rel. McMullen v. Shepard (1867) 36 N. Y. 285. The creation of a metropolitan sanitary district by the act of 1866, chap. 74, was also sustained in Metropolitan Bd. of Health v. Heister (1868) 37 N. Y. 661.

The legislature has no power to "carve out from the territory of the state a district for judicial purposes not bounded by town or county, city or village lines, and erect therein a local court." People ex rel. Townsend v. Porter (1882) 90 N. Y. 68.

The power of the legislature to erect counties and towns is considered in notes to 88 4 and 5 of this article, and the like power in relation to cities and villages is considered under § 1 of article 12. New York. The regulation of the rates of ferriage upon the New York and Brooklyn ferries is within the control of the legislature, and so long as those rates are not regulated by them, they are the