private use." Mount Sinai Hospital v. Hyman (1904) 92 App. Div. 270, 87 N. Y. Supp. 276.

LIMITATION OF INDEBTEDNESS.

The stock or fund created by the corporation of the city of New York and held by the commissioners of the sinking fund is not to be included in a computation made for the purpose of determining whether a city has reached the debt limit prescribed in this section. "We think it plain that the indebtedness here referred to is an indebtedness to be met in the future by taxation, for (1) before its possible limit can be defined the value of the real estate subject thereto must be ascertained. (2) By the express words of the provision, water bonds issued for a fixed term are not to be included, but a sinking fund must be created 'for their redemption.' (3) So the issue of certificates of indebtedness or revenue bonds in anticipation of, and payable out of, the taxes for the current year, is permitted.” Bank for Savings v. Grace (1886) 102 N. Y. 313, 7 N. E. 162.

The provision relating to the indebtedness of cities containing a population exceeding 100,000 was construed in Sweet v. Syracuse (1891) 129 N. Y. 316, 27 N. E. 1081, 29 N. E. 289, where it was held that the sinking fund requirement applies only to such cities, and a statute was sustained which authorized city water bonds running more than twenty years without any provision for a sinking fund in a city which contained a population of less than 100,000. The same provision was again considered in Rochester v. Quintard (1892) 136 N. Y. 221, 32 N. E. 760, and it was there held that the exception limiting water bonds to a term of twenty years, with provision for a sinking fund, does not apply where the aggregate indebtedness, including the new bonds, does not exceed the constitutional limit, and the Rochester water act of 1892, chap. 358, authorizing bonds running fifty years, was sustained, the court saying that the twenty years' limitation, with the sinking fund accompaniment, applies only where the debt limit has already been passed. Judge Finch, discussing the constitutional restriction, makes some observations which may profitably be quoted here:

"The obvious theory of the constitutional provision is that the smaller cities of the state needed but one restraint, and that relating to the purpose and occasion of their indebtedness, and not to its amount. Such cities were not likely, with their smaller necessities, to make large loans and contract heavy debts, and so were left without restriction upon amounts or terms, save such as the citizens

might themselves impose. But the larger cities, with their greater needs and the pressure of much more numerous non-taxpayers, and their swarm of claimants on the public treasury, did need restraint, not only as to the purposes of the municipal indebtedness, but as to its amount; and so the restriction in that respect also was imposed; and yet, to prevent a greater evil which might result, and open the door to a necessity of the gravest character, it was enacted that even that restraint should not bar the further issue of bonds for a water supply; but since these would add to a debt already crowded to the extreme limit of prudence and safety, it was proIvided that such added debt should run for a moderate term of credit and be guarded by a sinking fund so as to reduce to the lowest reasonable point the continuance and menace of the debt already too large. The city which availed itself of the exceptional permission could do so only upon the conditions which were attached with a view to making the added debt as little harmful as possible. Of course, the line between the smaller and the larger cities, those which did not and those which did call for a limit of permitted debt, had to be drawn somewhat arbitrarily, and was fixed at a population of one hundred thousand inhabitants as the most reasonable test capable of application."

The debt restriction was again considered in Adams v. East River Sav. Inst. (1892) 136 N. Y. 52, 32 N. E. 622, and it was there held that the debt of the city could not be added to the debt of the county for the purpose of determining whether the latter had already reached the constitutional limit. The restriction is to be applied distributively. "The indebtedness of the county of which the city forms a part does not play any part in the process of determining when the limitation is applicable, as it is wholly immaterial." So, in a like case, a debt of a city cannot be charged against the county. Each municipal corporation must be treated separately, and their debts cannot be aggregated.

The amendment of 1894, which took effect January 1, 1895, did not affect existing contracts for public improvements made under a statute which authorized the issue of city bonds from time to time in connection with the work. The obligation of the contract could not be impaired by a subsequent amendment of the Constitution. Sheehan v. Long Island City (1895) 11 Misc. 487, 33 N. Y. Supp. 428, Gaynor, J.

Courts will be guided by official figures in determining the amount of local indebtedness under this section, and, in a case involving a specific item of proposed indebtedness, other items of possible inVOL. IV. CONST. HIST.-44.

debtedness or projected public improvements need not necessarily be considered. Re New York (1895) 72 N. Y. Supp. 378, Patterson, J. See Cahill v. Hogan (1905) 180 N. Y. 304, 73 N. E. 39.

The authority to construct the rapid transit system in New York is subject to this constitutional restriction as to indebtedness. Re Rapid Transit R. Comrs. (1896) 5 App. Div. 290, 39 N. Y. Supp.

750.

Certain revenue bonds issued by Long Island City were held not to be revenue bonds within the meaning of the exception in the foregoing section, because not issued as therein prescribed. Such bonds became a part of the permanent debt of the city. The test of the validity of the bonds is to be applied when they are issued, and not when they mature. Gibson v. Knapp (1897) 21 Misc. 499, 47 N. Y. Supp. 446.

The contract price for a street improvement, the expense of which is to be borne by adjoining property owners, is not a part of the city's indebtedness under this section. A special franchise is to be assessed as real property, and its value included in the amount of the city's assessment for the purpose of determining whether the debt limit has been reached. Kronsbein v. Rochester (1902) 76 App. Div. 494, 78 N. Y. Supp. 813.

The provision relating to indebtedness where a city embraces an entire county or two or more entire counties, which was added in 1899, taking effect January 1, 1900, and which at present is applicable only to counties included in the city of New York, is considered in McGrath v. Grout (1902) 171 N. Y. 7, 63 N. E. 547, and the court there say that "the indebtedness which a county is inhibited from incurring means one which is created for purposes other than for the maintenance of the political organization." It has no reference to the obligations of the county for current expenses of such a nature. "Indebtedness for the current expenses of the county organization is necessarily incidental, and it is made payable from moneys raised annually by taxation upon the taxable property within the county, through the municipal agencies designated by the legislature for the purpose." The court accordingly sustained the acts of 1901, chaps. 704, 705, and 706, making the offices of clerk, register, and sheriff of Kings county salaried offices, and providing for paying the salaries and office expenses by the city of New York.

PUBLIC PURPOSE.

Brooklyn bridge.-The acts of 1867, chap. 399, and 1875, chap. 300,

providing for the erection of the East river bridge between New York and Brooklyn, the subscription to the stock thereof by the two cities, and their ultimate acquisition of the bridge, authorize an expenditure for a public purpose within the meaning of this section. "It is impossible to define in a general way with entire accuracy, what a city purpose is, within the meaning of the Constitution. Each case must largely depend upon its own facts, and the meaning of these words must be evolved by a process of exclusion and inclusion in judicial construction." Public funds may constitutionally be expended for a supply of water for the city, for public parks, and for the improvement, within reasonable limits, of highways and streets leading into the city. A city purpose does not mean simply some work or expenditure within the city limits. "The bridge will be for the common benefit of all the citizens of both cities, and each citizen will have the same right to use it as every other citizen. It would have been a city purpose if either city had been authorized to build the whole of the bridge, and it is no less so that both are to unite in building it." The court cited the statutes authorizing the joint construction of bridges between two towns.

"The legislature, when legislating in view of this constitutional limitation, must determine in the first instance what is a municipal purpose;" but its action is not conclusive, and may be reviewed by the courts. People ex rel. Murphy v. Kelly (1879) 76 N. Y. 475. This decision has lost much of its local importance by the recent consolidation of New York and Brooklyn and other municipalities in Greater New York, but the principles apply with equal force to all municipalities between which bridges or highways are jointly

constructed.

Compromising claim.—The payment of an acknowledged debt is a city purpose. "The Constitution does not deprive municipalities of the right to compromise a claim which they dispute, but which, in the end, they deem it wise and prudent to acknowledge in part, and pay as acknowledged; and which might, by judicial decision, but for the compromise, become a charge upon them to its full extent." Hills v. Peekskill Sav. Bank (1886) 101 N. Y. 490, 5 N. E. 327.

Counsel for defendant in criminal cases.-An allowance under § 308 of the Code of Criminal Procedure to counsel assigned to aid the defendant in a capital case is for a public purpose, and does not violate the prohibition against appropriating public money in aid of an individual. "The administration of the criminal law is a governmental function, the expense of which is charged upon the

respective counties in which violations of the law are committed, and public moneys appropriated to the payment of obligations incurred in such administration are so appropriated for a public purpose." By the common law in force at the adoption of the state Constitution defendants in criminal cases were entitled to counsel, to be assigned by the court. The assignment of counsel is a public duty, performed by the trial court in the administration of justice. The state will not permit a plea of guilty in a capital case. The state is under a "supreme obligation to see that no

citizen's life is taken under any circumstances, save as he has forfeited the same to the state through some felonious act, or his continued existence imperils the stability of the government." But aside from the interests of the individual, the interests of the state may require protection, and in such a case the Constitution authorizes an appropriation of public funds for the purpose. The interest of the individual is only incidental "to the discharge of the obligation which the state owes to all of its citizens and inhabitants that human life and property shall be made safe, and that neither the one nor the other shall be taken away except by due process of law." The state is burdened with the responsibility and duty of conducting a criminal trial, "and money appropriated therefor is necessarily appropriated for a public purpose, and there can be no difference in principle between authorized expenditure of money for such purpose by the public prosecutor, and the appropriation of it by the legislature in order to secure to the defendant a fair trial.” Counsel for the defendant is engaged in a public service for the benefit of the state, and has an equitable claim against the state for compensation. People ex rel. Acritelli v. Grout (1903) 87 App. Div. 193, 84 N. Y. Supp. 97, citing People ex rel. Brown v. Onondaga County (1886) 3 How. Pr. N. S. 1, 4 N. Y. Crim. Rep. 102; affirmed in (1886) 102 N. Y. 691, where it is said that the public have the same interest in the acquittal of the innocent as in the conviction of the guilty.

County expenses in criminal cases.-The act of 1885, chap. 428, which provided for reimbursing the county of Cayuga for expenses incurred by it in the prosecution and trial of convicts in Auburn state prison, was intended as a discharge of an equitable obligation, although unenforceable, which, in the judgment of the legislature, rested upon the state. Such reimbursement was not a gift of money of the state. The county of Cayuga was not a corporation within the meaning of this section. "The word 'corporation' plainly refers to private and business corporations, and does not