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H. & B. R. Co. v. Kennedy (1897) 15 App. Div. 588, 44 N. Y. Supp. 825.
The act of 1898, chap. 151, amending the act of 1882, chap. 92, by omitting therefrom the provision authorizing the Rochester & Charlotte Turnpike Company to impose a toll for the use of its road by velocipedes and bicycles. The franchise conferred by the act of 1882 was property of which the company could not be deprived except by eminent domain. Rochester & C. Turnp. Road Co. v. Joel (1899) 41 App. Div. 43, 58 N. Y. Supp. 346.
Indemnitors. The mandatory provision in $ 1421 of the Code of Civil Procedure as amended in 1887, requiring the substitution of indemnitors in an action against the sheriff. The court has no discretion; indemnitors may or may not be responsible. The court cannot compel them to furnish security, and they may not be able to do so. Levy v. Dunn (1899) 160 N. Y. 504, 73 Am. St. Rep. 699, 55 N. E. 288.
Inebriate asylum.-The act of 1865, chap. 266, "for the better regulation and discipline of the New York State Inebriate Asylum," which authorized the commitment of an inebriate to the institution on es parte affidavits and without an opportunity to be heard. The alleged inebriate was deprived of his liberty without due process of law. Re Janes (1866) 30 How. Pr. 446, Balcom, J.
Labor low.—The provision in $ 3 of the labor law, requiring contractors on public works, either with the state or a municipal corporation, to pay the prevailing rate of wages in the locality where the work is performed, and requiring each such contract to contain a stipulation to the effect that a violation of the foregoing provision shall render the contract void. Taxpayers have a right to assail the statute. “Local property owners, who are the parties that in the end must bear the expense of the improvement, are entitled to the benefit of the best judgment and discretion of the city officers in making the contract for the work. To the extent that such judgment and discretion is taken away by arbitrary enactments not in their interest, but in favor of opposing interests, their constitutional rights of liberty and property are invaded," and their property is taken without due process of law. The legislature cannot deprive the contractor of the benefit of his contract "by imposing burdensome conditions with respect to the means of performance, or to regulate the rate of wages. ... When he is not left free to select his own workmen upon such terms as he and they can fairly agree upon, he is deprived of that liberty of action and right to accumulate property embraced within the guaranties of the
Constitution, since his right to the free use of all his faculties in the pursuit of an honest vocation is so far abridged. ... A law that restricts freedom of contract on the part of both the master and servant cannot in the end operate to the benefit of either." People ex rel. Rodgers v. Coler (1901) 166 N. Y. 1, 15, 52 L. R. A. 814, 82 Am. St. Rep. 605, 59 N. E. 716.
Married women.—The act of 1848, chap. 200, "for the more effectual protection of the property of married women,” which provided that the property of a woman then married should not be "subject to the disposal of her husband, but shall be her sole and separate property," so far as it affected the husband's title to a legacy to his wife which had already become vested. Westervelt v. Gregg (1854) 12 N. Y. 202, 62 Am. Dec. 160.
Metropolitan police district.—The metropolitan police district excise act of 1866, chap. 578, which provided for the seizure and, at least, an implied confiscation of intoxicating liquors under specified conditions. People v. Krushaw (1866) 31 How. Pr. 344, note, General Sessions.
Mileage books.—The 2-cent mileage book law of 1895, chap. 1027, as to a corporation previously chartered with the right to charge more than 2 cents per mile. Beardsley v. New York, L. E. & W. R. Co. (1900) 162 N. Y. 230, 56 N. E. 488, following Lake Shore & M. S. R. Co. v. Smith (1899) 173 U. S. 684, 43 L. ed. 858, 19 Sup. Ct. Rep. 565; Watson v. Delaware, L. & W. R. Co. (1900) 32 Misc. 311, 66 N. Y. Supp. 798, in which it is said that “this statute arbitrarily, without due process of law, deprives the defendant of the right to full compensation for services according to its charter."
Monuments. The act of 1888, chap. 543, giving a lien for the unpaid purchase price of a monument, which lien might be asserted and the monument removed without notice to the purchaser. The act provides no tribunal before which the purchaser of a monument can appear and have his rights adjudicated, but assumes to take away his property and give it to another without any legal process, and without giving him an opportunity to be heard and defend his title and possession. Brooks v. Tayntor (1896) 17 Misc. 534, 40 N. Y. Supp. 445, Sp. T.
New York city.—The act of 1860, chap. 449, which required the city of New York to pay the sum which might be awarded against the city by arbitrators who were authorized to adjust and determine the damages due to contractors on account of certain public improvenients. The city was, by the act, deprived of a right to a trial acco ing to the course of the common law. People ex rel. Baldwin
v. Hows (1862) 37 Barb. 440; Baldwin v. New York (1864) 42 Barb. 549 (1864) 2 Keyes, 387.
The provisions of $8 707-811 of the Greater New York charter of 1897, chap. 378, which, among other things, authorized the superintendent of the workhouse to determine by investigation whether a person committed to the institution is identical with some former prisoner, and report to the commissioner of correction, who, after confirming the identity, is required to fix the term of imprisonment of the person committed. The term is dependent upon the action of the superintendent and commissioner in determining the question of identity. The person charged has no notice and no opportunity to be heard, and is therefore deprived of liberty without due process of law. Re Kenny (1898) 23 Misc. 9, 49 N. Y. Supp. 1037, affirmed in (1898) 30 App. Div. 624, 53 N. Y. Supp. in. These provisions were continued with modifications in the revised charter of 1901, chap. 466, and as modified the sections were sustained in People ex rel. Abrams v. Fox (1902) 77 App. Div. 245, 79 N. Y. Supp. 56.
The act of 1900, chap. 663, amending $ 1212 of the Greater New York charter of 1897, prohibiting the disposal of garbage by specified methods in the borough of Brooklyn, and requiring the immediate removal of any such business to some place outside the borough. This was held invalid as to an existing corporation, carrying on this business under a contract with the city, at a place chosen by the municipal authorities, and which business did not create a nuisance, and was not detrimental to the public health. New York Sanitary Utilization Co. v. Health Department (1901) 61 App. Div. 106, 70 N. Y. Supp. 510.
The New York City Riverside Park act of 1896, chap. 727. It applied, so far as practicable, other provisions of law relating to taking property for public purposes. The court held that this was permissive only, and was not a sufficient compliance with the rule requiring notice in proceedings to take private property for a public purpose, and that the act was therefore unconstitutional. "The matter of notice must be not merely permissive, but actually prescribed by the legislature in order that the assessment may be valid.” Re New York (1901) 34 Misc. 719, Special Term, 70 N. Y. Supp. 227.
Notice of assessment.—The act of 1870, chap. 619, amending chap. 217, Laws 1869, which authorized an assessment for a public improvement in the town of New Lots, Kings county, without notice to the owners of the land. “The law must require notice to them, and give them the right to a hearing and an opportunity to be heard. The constitutional validity of law is to be tested, not by what has
been done under it, but by what may, by its authority, be done. The legislature may prescribe the kind of notice and the mode in which it shall be given, but it cannot dispense with all notice." Stuart v. Palmer (1878) 74 N. Y. 183, 30 Am. Rep. 289; Re Middletown (1880) 82 N. Y. 196; Re Livingston Street (1880) 82 N. Y. 621, where it was held that statutes were not invalid because not requiring notice to landowners of an application for the appointment of commissioners. The constitutional requirement is satisfied if provision is made for notice of a hearing by commissioners appointed to appraise the damages. People ex rel. Griffin v. Brooklyn (1851) 4 N. Y. 419, 55 Am. Dec. 266; Re Lowden (1882) 89 N. Y. 548; Re De Peyster (1882) 80 N. Y. 565; Re New York (1885) 99 N. Y. 569, 2 N. E. 642; Spencer v. Merchant (1885) 100 N. Y. 585, 3 N. E. 682, affirmed in 125 U. S. 345, 31 L. ed. 763, 8 Sup. Ct. Rep. 921, in which the court sustained the act of 1881, chap. 689, which re-levied a part of the assessment covered by the acts of 1869 and 1870, which were held invalid in Stuart v. Palmer (1878) 74 N. Y. 183, 30 Am. Rep. 289; Re Amsterdam (1891) 126 N. Y. 158, 27 N. E. 272; Re Brooklyn (1895) 87 Hun, 54, 33 N. Y. Supp. 869.
Notice of injury.—The provision in the Port Jervis charter (1896, chap. 529, $ 82) which requires a person receiving an injury that might be the subject of an action to give notice thereof within fortyeight hours after the accident, or be excluded from any right to maintain an action therefor. A right of action for such an injury is property. The short limitation in this statute is unreasonable. "All limitation laws must proceed on the theory that the party, by lapse of time and omissions on his part, has forfeited his right to assert his title in the law;" and these laws must also "proceed on the idea that the party has full opportunity afforded him to try his right in the courts." (Cooley, Const. Lim. 6th ed. p. 449.) “Due process of law requires that the party should have a fair opportunity to be heard before the issues are decided.” In this case the injury sustained by the plaintiff did not develop until after the time limited by the charter for the service of a notice, and a notice was not served until thirty days after the accident. It was held that the plaintiff was entitled to recover notwithstanding his failure to give the notice within the time fixed by the charter. Barry v. Port Jervis (1901) 64 App. Div. 268, 72 N. Y. Supp. 104.
Oleomargarine act.—The oleomargarine act of 1884, chap. 202, $ 4. The act "prohibits an important branch of industry for the sole reason that it competes with another, and may reduce the price of an article of food for the human race. Measures of this kind are
dangerous even to their promoters." Citizens should not be excluded from industries, lawful in other respects, in order to protect another class against competition. Such legislation, including this act, violates the letter as well as the spirit of the Constitution. People v. Mars (1885) 99 N. Y. 377, 52 Am. Rep. 34, 2 N. E. 29.
Partition, unknown heirs.-Section 841 of the Code of Civil Procedure, as amended in 1889, chap. 40, providing that if the proceeds of a sale in partition, paid into court for unknown heirs, remain unclaimed for twenty-five years, such unknown heirs shall be presumed to be dead, and $ 1582, which directs the disposition of such proceeds, violate the constitutional provision against taking property without due process of law. People ex rel. Miller v. Ryder (1891) 124 N. Y. 500, 26 N. E. 1040; People ex rel. Griffin v. Ryder (1892) 65 Hun, 175, 19 N. Y. Supp. 977.
Passage tickets.-Section 615, as added, and $ 616 of Penal Code, as amended by chap. 506 of the Laws of 1897, prohibiting the sale of passage tickets on vessels or railroad trains except by agents specially authorized for that purpose by the persons or corporations owning or operating such vessels or trains. “Brokerage in such tickets has been a lawful business in this state for many years, and many persons have pursued it. It is still a lawful business, although the right to engage in it is limited to such persons as may be appointed by the transportation companies." The act interferes with the liberty of the citizen, and is void. People ex rel. Tyroler v. City Prison (1898) 157 N. Y. 116, 43 L. R. A. 264, 68 Am. St. Rep. 763, 51 N. E. 1006.
Private roads.-1 Rev. Stat. 513, $ 77, authorizing a private road lor v. Porter (1843) 4 Hill, 140, 40 Am. Dec. 274. This subject is to be laid out over the lands of a person without his consent. Taynow included in the Constitution, article 1, $ 7.
Prizes with food products.-Section 355a of the Penal Code, which prohibits the giving of prizes on the sale of articles of food. “This law interferes with the free sale of food, for the condition is imposed that no one shall sell food and at the same time, and as part of the transaction, give away any other thing." The act infringes “upon the liberty of the owner or dealer in food products to pursue a lawful calling in a proper manner," and, at least to some extent, deprives a person of his property by curtailing his power of sale. It is not a valid exercise of the police power. People v. Gillson (1888) 109 N. Y. 389, 4 Am. St. Rep. 465, 17 N. E. 343.
Procedure, preferences in civil actions.-Section 793 of the Code of Civil Procedure, as amended in 1904, chap. 173, which required