FIRST DEPARTMENT, DECEMBER TERM, 1874.

Fourth. The objection that the creation of the board of engineers to superintend this work, is a violation of article 10, section 2 of the Constitution, in relation to the appointment of certain officers, cannot prevail. If the point be well taken, then the Town of Guilford v. The Board of Supervisors of Chenango County, before cited, was wrongly determined. In that case the Court of Appeals had before it the constitutionality of a law appointing commissioners to determine the amount of a tax to be levied. So, also, if the position be sound, Litchfield v. Vernon † and Pe‹ple v. Laurence ‡ were wrongly decided. In these cases the constitutionality of an act, creating a special board of commissioners to do certain things relating to the closing of the Atlantic street tunnel, in the city of Brooklyn, and to assess the cost thereof, was affirmed. It would not be difficult to answer the objection, were it an original question, but such a discussion is neither profitable nor necessary in view of adjudged cases, which this court has no power to reveise.

Fifth. Neither is the law obnoxious to the first article of the Constitution, section 9, which provides: "The assent of two-thirds of the members elected to each branch of the legislature shall be required to every bill appropriating the public moneys or property for local or private purposes." No "public moneys," in the sense which the word public is used in that part of the organic law, are appropriated, so as to make a two-third vote of the legislature necessary. The use of the words public and local in the same section, forbids the thought that they are synonymous expressions, and the structure of the whole sentence is in opposition to the construction which attaches to each a similar meaning. It was very easy to say if that was the thought intended, that no tax should be imposed for a local or private purpose upon the State or a locality, except by the vote of two-thirds of the members elected to each branch of the legislature." Instead of that, the expression indicates, as well as the good sense of the requirement, that the assent of two-thirds of the members was necessary when money belonging to the whole State was to be appropriated for the benefit of a part This construction makes the provision reasonable and proper, and demonstrates that the “public moneys," referred to in the section, are those belonging to the State, and that the clause of the Constitution cited is no limitation on the power of the legislature to assess or tax the cost of a local improvement upon a locality. Neither by the law is any "private property * * * taken for any public use," so as to make article 1, section 6 of the Constitution applicable. Taxation upon a locality for an improvement therein, is the exercise of a different power, whilst the constitutional provision just cited refers to the taking of property by the right of eminent domain. This distinction, ever since the able and exhaustive opinion of RUGGLES, J., in People v. Mayor of Brooklyn,§ wherein it is most clearly stated and explained, has been well recognized in this State, and repeatedly followed.

Sixth. The last objection urged is, that " chapter 702 of the Laws of 1872 is also unconstitutional and void, in so far as it imposes the payment of this money upon the city of New York for the benefit of the Harlem Railroad Company, as the compelling of such payment is beyond the scope and purview of the legislative *13 N. Y., 143. +41 N. Y., 123. + 41 N. Y., 137. § 4 N. Y., 419.

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power." Assuming the truth of the statement contained in the point urged — that the tax is for "the benefit of the Harlem Railroad Companý "— the objection is still without force. There is no such limitation on the taxing power of the legislature. In Town of Guilford v. The Supervisors of Chenango County,* before cited, in answer to an objection that the law imposing the tax was a mere gift to the parties in whose favor it was imposed, Judge DENIO said: "The legislature is not confined in its appropriation of the public money, or of the sums to be raised by taxation in favor of the individuals, to cases in which a legal demand exists against the State. It may thus recognize claims founded in equity and justice in the largest sense of these terms, or in gratitude or charity." In Litchfield v. Vernon, also before quoted, Judge GROVER ‡ speaking of the previously cited case, says: "In that case it was held that the legislature had the power to impose a tax upon the inhabitants to pay a claim that had no legal validity, and that could in no way be enforced against the town. In other words, that it was in the power of the legislature to impose a tax upon a locality for any purpose deemed proper, and that its power in this respect is not restricted by the Constitution of the State." The opinion of MASON, J., in The People v. Laurence is to the same effect. The case of People v. Batcheller || does not conflict with these views. It simply decides that a law requiring a town, without the consent of its inhabitants, to become a stockholder in a railroad company is unconstitutional. But the objection assumes a fact which is not true. The provisions are not for the benefit of the relator exclusively. This we have heretofore endeavored to show in this opinion. The proper improvement and use of the avenue by both the city and the railroad, and to make the one consistent with the other, were the results to be obtained. What part of the work justly belonged to the city and what to the relator, it was difficult to define with accuracy; and the work to be done by each was so interlaced, that it was deemed wise to direct its construction under a single plan. Perhaps from parts of this work the railroad receives the larger benefit and from others the city. The legislature, in its wisdom, has assessed the one-half part upon each. This power is nothing different from what is exercised in behalf of municipal corporations every day. A street is opened and graded through agricultural lands. In such a case the amount to be paid by a city or village, as a whole, is always considerable, and yet the objection was never made, or, if made, has never prevailed, that it was unconstitutional to tax the entire municipality for work, a part of which, at least, benefited individuals only. Such owners are presumed to pay for that part which specially benefits them in the assessments which they pay for such benefits, over and above their share of the general tax, to which they also contribute. So in this case the legislature has determined that one-half of the cost of the improvement, over and above its proportion of the tax levied upon the city, shall be paid by the relater as its share of the peculiar benefits resulting therefrom. It is not for this court to say that this apportionment is unjust. To that body, as the supreme arbiter under our Constitution, has the right to decide been committed, and with its decision this court has neither the power nor inclination to interfere.

FIRST DEPARTMENT, DECEMBER TERM, 1874.

Doubtless, in the exercise of their great powers, they will often err, as any tribunal which is but human will, but no system of government has ever yet been devised, and none ever will be established, which shall in any department always do exact justice, and whose lawful powers, if stretched to their fullest extent, might not work injustice in particular cases. In the grant of power, much must be conceded to the discretion, good sense and integrity of the individual or body to whom it is granted; but the concession of that which is fairly given should never be withheld, because extreme cases can be supposed in which it might be exercised with danger to the public. Practically, it will generally be found that the danger is largely imaginative, and the injury claimed to be done, scarcely perceptible.

Before closing this opinion, it may be well to advert to another view, applicable as much to each of the objections urged, as to the particular one in connection with which it has been hereinbefore stated. Statute and constitutional rights, existing in favor of a party, natural or artificial, may be waived. May not the act of 1872 be regarded as the embodiment of an agreement between the parties, to which all have assented-upon which all have acted—and the withdrawal of either from which cannot be permitted, because by its conduct it has induced the other to incur responsibilities which, it may fairly be assumed, would not have been incurred, if the other had not assented? The relator accepted the law, by making the contract for the work which the act required it to make. The city, through its officers, accepted it, by no protest against its provisions; by allowing the chief engineer of its board of public works to become a member of the board of construction, which directed the work and controlled the expenditure; by using its machinery for the collection of taxes to assess, levy, collect and receive into the city treasury its one-half of the cost; by drawing warrants and paying over $1,000,000 thereon; and, through its citizens, by the payment of the tax levied for the city's share of the cost. Thus all parties have agreed-the city through every officer and every tax-payer. No rule of law and no rule of honesty should permit objections to prevail, which have been so fully and explicitly waived.

As against the respondent, however, the strength of the point founded upon the acquiesence of the city in the Law of 1872, has not yet been stated. Every tax-payer in the municipality has not only assented to the act, but actually executed it. As a law imposing a tax, if it may be so regarded, it has already spent its force by the assessment and collection thereof, and the obtainment of the money for this purpose only. Every tax-payer has actually paid his, her, and its proportion of the amount which the city was to pay, of the cost of this great improvement, into the city treasury; and all, except that part which has been paid over in execution of the law, still remains therein pledged to this object. It cannot be used for any other purpose without a fraud upon the parties from whom it was collected, and who paid it that this work should not fail. When the mayor refuses to countersign this warrant, as the law commands, he refuses, not in order to protect his constituency from money oppressively to be taken against their will, but to defeat their wishes, and to appropriate their means to some use other than that to which they have pledged and dedicated it. His action in so doing is not only contrary to the desire of the relator, but to that of the body

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of the people whom he professes to represent, and whose voice he should obey. The citizens of New York have a right to insist that their means shall be used for the very purpose to which they have applied them, and none of their officers should be allowed to refuse to execute the trust which tax-payers, under the law, have committed to their official hands, in the belief that the provisions of such trust would be faithfully executed.

The result of my examination is, that the peremptory mandamus asked for should issue.

THE EXCELSIOR PETROLEUM COMPANY, APPELLANT, v. MAGGIE B. LACEY, EXECUTRIX, AND OTHERS, EXECUTORS, ETC., OF FREDERICK LACEY, DECEASED, AND OTHERS, RESPONDENTS. Referee-duty of on settlement of case — findings — when compelled to make · Rule 41. Upon the settlement of a case by the referee before whom it had been tried, the plaintiff prepared a number of findings in addition to those contained in the referee's report, upon all of which the referee passed, allowing some and declining to allow the others. Subsequently the plaintiff moved for an order requiring the referee to find for or against all of the findings requested by him on the settlement. Held, that the motion was properly denied. That as the referee had allowed or declined to allow all of the proposed findings, he had done all that he was bound to do.

An express refusal by a referee to find as requested, must be deemed a ruling to the effect that the evidence would not justify such finding, or that, if found, the fact would not be material to the issue.

The proper practice to be pursued upon the settlement of a case by a referee, stated.

APPEAL from an order of the Special Term, denying a motion to send back a case to a referee for further findings.

Wm. H. Dickinson, for the appellant.

Man & Parsons, for Lacey's executors.

George P. Andrews, Benj. T. Kissam and George C. Blanke, for other respondents.

DAVIS, P. J.:

This case was tried before a referee, who reported in favor of the defendants. The plaintiff made a case with exceptions, and on the settlement of the same, proposed to the referee a large number of

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findings, in addition to those contained in his report. The referee passed upon all of the proposed findings, allowing several of them, and declining to allow the others. At the foot of each of the requests which the referee did not find as requested, the case states that, "The referee declined so to find, and to such declination appellant duly excepted." The plaintiff thereupon moved at Special Term for an order that the referee "be required to find for or against all of the findings requested by plaintiff on the settlement of the case, which motion was denied, as it is stated in the order, on the ground that it appeared to the court "that the referee has allowed or declined the various proposed findings, and that, therefore, there is nothing to send back to him, he having done all that he was bound to do."

We are of opinion that the order of the Special Term is correct. By Rule 41 of this court, it is provided that upon the settlement of the case, the referee "shall correct and settle the case according to the facts, and shall at that time find on such other questions of fact as may be required by either party and be material to the issue." The words above italicized are amendments of the old rule made by the convention of judges in December, 1870, and they were doubtless inserted to change the practice as to the time when additional findings should be asked for; it having been decided in Lefler v. Field,* that the request for additional findings must be made before the settlement of the case.

I have no doubt that the words, "find on," were used in such amendment in the sense of "pass upon;" and it may be added, that the late convention of judges to revise the rules, have sustituted the word, "pass," for the word, "find," in the rules to take effect on the first of February next.

The following is the practice laid down, as I think correctly, in Wait's Practice: "Should the referee refuse to pass upon the questions of fact submitted to him for that purpose, and to find affirmatively or negatively, the party should, as a precautionary measure, take an exception to such refusal, although such exception may not be strictly necessary or available to raise the question for review. (See Grant v. Morse, 22 N. Y., 323; Manley v. Insurance Company of North America, 1 Lans., 20; Priest v. Price, 3 Vol. 3, p. 327.

* 50 Barb., 407.