provision of the Constitution is a restriction upon the legislature, and forbids the enactment of any law authorizing the construction or operation of a street railroad except upon the consent of the local authorities having control of the street or highway upon which it is proposed to construct the road." In administering this power the local authorities are clothed with sovereignty, and are as independent in its exercise as is any other department of the government. This is an important home rule provision, and even the courts cannot inquire into the motives which govern and control the lawful exercise of the power. But the provision which requires the consent of the local authorities to the construction and operation of a street railroad has not abridged the power of the legislature, which has absolute control of the streets, and the direction as to their "The legislature may still grant the use of the streets, subject only to the condition that the consent of the local authorities be obtained before the road is constructed or operated. The franchise proceeds from the legislature, and the obtaining of the consent of the local authorities is the performance of a condition without which the road cannot be constructed." Adamson v. Nassau Electric R. Co. (1895) 89 Hun, 261, 34 N. Y. Supp. 1073.

use.

The jurisdiction of the general term under this provision was continued until January 1, 1896, when it became vested in the appellate division. Re Rapid Transit R. Co. (1895) 147 N. Y. 260, 41 N. E. 575.

In Sea Beach R. Co. v. Coney Island & G. Electric R. Co. (1897) 22 App. Div. 477, 47 N. Y. Supp. 981, it was held that the consent of an owner of a corner lot opposite the outer curve of a railroad to be built on two intersecting streets must be included in determining whether the number of consents required by the Constitution had been obtained.

The appellate division has power to confirm a report of commissioners appointed under this provision. Re Port Chester Street R. Co. (1899) 43 App. Div. 536, 60 N. Y. Supp. 160.

A street surface railroad which crosses a highway is built "upon" it within the meaning of the Constitution, and the consent of the local authorities must first be obtained. Re Syracuse & S. B. R. Co. (1900) 33 Misc. 510, 68 N. Y. Supp. 881.

As to the power of the court to condemn streets for street railroad purposes see Schenectady R. Co. v. Peck (1903) 84 N. Y. Supp. 759.

Where a bridge over a boundary stream between two towns is under their control and maintained at their joint expense the highway VOL. IV. CONST. HIST.-28.

commissioners of the towns are the local authorities whose consent must be obtained under this constitutional provision, notwithstanding the fact that the bridge is also in two incorporated villages. Wheatfield v. Tonawanda Street R. Co. (1895) 92 Hun, 460, 36 N. Y. Supp. 744.

§ 19. [Private claims not to be audited by legislature.] -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.

[Am. 1874.]

The substance of this provision was recommended by the Convention of 1867, and included in the report of the Commission of 1872, which was adopted in 1874.

"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." The act of 1885. chap. 238, authorizing the board of claims to hear and determine certain claims of the captain and harbor masters of the port of New York, did not violate this constitutional provision. It simply submitted the claims to a judicial body "established for the purpose of passing upon claims against the state. . . . The power to hear and determine includes power to reject as well as to allow." The statute was in no sense an exercise of judicial power. Cole v. State (1886) 102 N. Y. 48, 6 N. E. 277.

Only claims which had been regularly heard and determined by the board of audit could be paid or allowed by the legislature. Swift v. State (1881) 89 N. Y. 52.

"When individuals voluntarily furnish property or render valuable services to the state at the request of state officers for state purposes, but with the expectation of payment for the same, the legislature may ratify the acts of such officers, although, previously unauthorzed, and create a legal liability on the part of the state to pay for

such property and services enforceable in its tribunals. The act of the legislature in supplying defects or omissions in pre-existing legislation, whereon a liability may be predicated against the state, is clearly not the audit of a claim, neither is it an allowance thereof." O'Hara v. State (1889) 112 N. Y. 146, 2 L. R. A. 603, 8 Am. St. Rep. 726, 19 N. E. 659.

The claim of Cayuga county for reimbursement on account of expenses incurred in the prosecution of persons charged with the commission of crimes in Auburn state prison was not a private claim against the state, and the legislature had power to authorize its payment. Cayuga County v. State (1897) 153 N. Y. 279, 47 N. E. 288. The act of 1900, chap. 767, which authorized the court of claims to hear, audit, and determine a claim for damages arising from the cancelation of letters patent because of a defect in the title, and make an award therefor, was a proper exercise of legislative power under this section. The legislature had authority to recognize the justice of the claim, and to waive a technical defense of lack of warranty. It did not thereby audit or allow the claim. Wheeler v State (1904) 97 App. Div. 276, 90 N. Y. Supp. 18.

§ 20. [Two-thirds bills.]—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. 7, § 9; 1846, art. 1, § 9.]

This provision appears for the first time in the Constitution of 1821, and in its original form included statutes relating to corporations. This part of the section was omitted in 1846. For convenience the cases construing that part of the provision relating to corporations have been cited in a note to the section on two-thirds bills in the Constitution of 1821, which will be found in the Introduction. I have tried to include in the present note all cases involving the construction of the remainder of the section, although some of them construe statutes passed under the Constitution of 1821.

"An appropriation of the public moneys to pay the debts of the state, or any single debt thereof, cannot be regarded as an appropriation for a private purpose;" such a provision is for the discharge of a public obligation, which is not a private purpose. People v. Densmore (1873) I Thomp. & C. 280; People v. Canal Board (1873) I Thomp. & C. 309 (1874) 55 N. Y. 390.

It may be private "An appropriation regarded as for a

The decision of the legislature that a bill is private or local is not final nor conclusive. Under this section the purpose of a bill must be either private or local. It need not be both. and not local, or it may be local and not private. of money by the legislature must generally be local purpose when the money is to be expended in a particular locality and the people of that locality are to be directly and mainly benefited, notwithstanding the public are incidentally and remotely benefited." The act of 1896, chap. 880, making an appropriation for the improvement of Boquet river, did not receive a two-thirds vote and was therefore void. People ex rel. Adsit v. Allen (1870) 42 N. Y. 378. The same subject was considered in Waterloo Woolen Mfg. Co. v. Shanahan (1891) 128 N. Y. 345, 14 L. R. A. 481, 28 N. E. 358, where it is said that "the scrutiny which the courts have exercised in regard to legislation of this character has been confined to matters appearing on the face of the bill itself, and to things that are the subject of judicial notice." The act in question made an appropriation for dredging a part of Seneca river and a connecting race to facilitate the passage of canal boats. The trial court took testimony to show that the appropriation was really for a private purpose. The court of appeals say that the purpose expressed in the act is not private or local, but public, “inasmuch as the general improvement of the public highways of the state, whether canals or rivers that are navigable, is for the benefit of the state at large, though some locality or some individuals may be benefited more than others. The expenditure may, in fact, be improvident and the work may prove to be useless to the public, but the legislature, as the depository of the sovereign powers of the people, must necessarily be the judge of the propriety and utility of making it. . . . The judicial department cannot institute an inquiry concerning the motives and purposes of the legislature in order to attribute to it a design contrary to that clearly expressed or fairly implied in the bill, without disturbing or impairing in some measure the powers and functions assigned by the Constitution to each department of the government. The courts cannot determine upon the testimony of witnesses that the purpose of the legislature

was to appropriate public money for the benefit of an individual, when it has expressed its purpose in the bill itself to be the enlargement or improvement of the canal. . . . Reason and authority, as well as the fitness of things, demand that when an act of the legislature appropriating money is assailed upon the ground that the purpose of such appropriation is local or private, and not public, the question shall be determined by the language and general scope of the act." The general escheat laws of 1833, chap. 300, and 1834, chap. 37, which authorized the commissioners of the Land Office to release escheated lands under prescribed conditions, "did not require the assent of two thirds of the members elected to each branch of the legislature, in order to render them valid and effectual in respect to lands which escheated after their passage, as to which they are not to be regarded as acts appropriating public moneys or property for private purposes .. but as statutes effecting a modification of the laws relating to escheats," which the legislature might enact by a majority vote. Englishbe v. Helmuth (1850) 3 N. Y. 294. The public lands law (1894, chap. 317) contains general provisions relating to escheats.

The act of 1850, chap. 283, which authorized the commissioners of the Land Office to grant to adjacent owners "so much of the lands under the waters of navigable rivers or lakes as they shall deem necessary to promote the commerce of this state," required a two-thirds vote. The secretary of state had certified in the session laws that the act was passed by a two-thirds vote, but the certificate of the presiding officer of the assembly accompanying the bill did not show that it had been so passed. The court said that, under the circumstances, the journal of the assembly might be examined for the purpose of ascertaining the fact. The examination showed that the bill had received more than a two-thirds vote. Rumsey v. New York & N. E. R. Co. (1891) 130 N. Y. 88, 28 N. E. 763.

New York & L. I. Bridge Co. v. Smith (1896) 148 N. Y. 540, 42 N. E. 1088, also holds that where the certificates are defective, recourse may be had to the legislative journals for the purpose of determining the fact as to the passage of bill. "We think," the court say, "it would defeat the provisions of the Constitution and the statute if, in such an emergency as was here presented, recourse could not be had to the journals of the two houses."

The act of 1872, chap. 702, to improve and regulate the use of Fourth avenue in the city of New York, did not require a two-thirds vote. It did not appropriate public moneys for local purposes, but provided for local taxation for a local improvement. The court say