NEWELL v. THE PEOPLE

JOHNSON, J.

The question of the constitutionality of the canal act of July 10th, 1851, is directly presented by these cases, and must necessarily be decided. A decision against its validity will prove injurious to the interests of many persons, and disappoint the earnest wishes of many more. But this consideration, while it occasions regret on my part, detracts nothing from the obligation to preserve the constitution from infraction. The evil consequences to the community from an example of judicial unfaithfulness to that duty, would far outweigh the worst to be apprehended from a decision adverse to the canal act.

Before proceeding to the consideration of the principal question involved in these cases, it may not be amiss to advert very briefly to one or two topics which were urged upon our attention on the argument. For there may be found persons so little familiar with the grounds of judicial procedure, as to attach to them much more importance than they really deserve. These topics were presented to us under a great number of distinct heads, but are reducible to two. The one, that the governor and other state officers and two successive legislatures had been of opinion and had officially acted upon the opinion, that the act in question was not repugnant to the constitution. The other, that several gentlemen, occupying no official station, but of acknowledged learning and ability as lawyers and statesmen, had expressed opinions to the same effect. As to the first ground, although the action of the other departments of the government is always entitled to the respectful consideration of the judiciary, it can and ought to weigh nothing when it conflicts with their settled conviction of the requirements of the constitution. As to the latter ground, it seems quite obvious that we should be very forgetful of our duty, and of the obligation and responsibility officially imposed upon us, if we allowed our judgments to be swayed by the opinions of any number of men, however respectable.

Leaving these matters without further observation, let us turn to the main question which we are called upon to examine. The people of this state, in the exercise of their underived and sovereign authority, established the constitution. As part of the machinery of government under it, they created a senate and assembly, and vested in them the legislative power of the state. The authority of the legislature is not inherent, but is entirely derived from and subordinate to the constitution. "The constitution is the basis of legislative authority; it lies at the foundation of all law, and is a rule and commission by which both legislators and judges are to proceed" (2 Dall. 304). If therefore an act of the legislature is contrary to any provision of the constitution, it can not possess the force of law. Ever since the formation of constitutional governments, this principle has on all proper occasions been asserted and enforced by the courts, and is now one of the acknowledged maxims and fundamental rules of the law.

The provisions of the constitution which bear most immediately upon the question before us, are contained in article 7, sections 3 and 12. The 3d section provides, that after paying certain expenses of the canals, and the sums appropriated by the first and second sections of the same article, not more than $200,000 shall be paid out of the surplus revenues annually to defray the necessary expenses of the state, "and the remainder of the revenues of the said canals shall, in each fiscal year, be applied in such manner as the legislature shall direct, to the completion of the Erie Canal enlargement, and the Genesee Valley and Black River canals, until the said canals shall be completed." Section "twelve provides, that " no debt shall be hereafter contracted by or on behalf of this state" (except certain debts specified in the 10th and 11th sections, which have no bearing upon the question under consideration), unless authorized by a law imposing an annual tax to pay the interest and provide for the discharge of the principal; such law to be submitted to the people at a general election before it can take effect. If it shall be found that the act in question purports to dispose of the remainders of the revenues of the canals, at a time or in a manner unauthorized by the 3d section, or that it purports to create a debt unauthorized by the provisions of the 12th section, then the act is void.

To look at the provisions bearing upon the first of these questions from the same point of view, and in the light of the same facts as did the convention who framed the constitution, and the people who adopted it, will facilitate our arriving at a just conception of its meaning. In the years 1834 and 1835, the project of enlarging the Erie Canal began to be carried into effect. The financial policy adopted was substantially to apply the surplus revenues to the work and carry it on just so fast as the means thus furnished would permit. This policy was pursued until 1838, when another and wholly different course was adopted. It went upon the basis of considering the revenues of the canal as a fund to provide for the repayment of the principal and to pay the interest of moneys to be borrowed and applied to the completion of the work; and this is in substance the plan of the present canal act. Upon this plan the state proceeded till 1842, when, judging from the legislative action of that year, the scheme was found wholly to have failed.

When the convention assembled in 1846, these two financial schemes were fresh in the recollection of every one. That the difference between them is not formal, but of their very essence, may be rendered entirely apparent from a consideration of the results which would follow the adoption of each plan, taking, for the sake of illustration, certain assumed amounts for the revenues of the canals, and for the total cost of construction. These amounts are obviously wholly unessential, and in no way affect the principle of application. They are assumed, not because they are supposed to represent with accuracy the actual condition of the canals, or the probable results of the bill in question, but because they afford a striking illustration of the different results which may follow from the adoption of the one plan or the other. In order therefore to determine the question proposed, let us assume the annual remainder of revenues to be $500,000, and the total cost of completion $15,000,000. By the annual application of the remainders, the canals would certainly be completed in thirty years. What would be the result on the principle of anticipation adopted by the act in question? The annual interest on the loan of $9,000,000, at six per cent, is $540,000; the annual remainder applicable to its payment $500,000; and the annual deficit $40,000. So that at the end of thirty years, instead of having the canals completed and no debt, they would still need an expenditure of $6,000,000 to complete them, and the amount of money owing, by reason of the deficiency of the remainders to keep down the annual interest, would have swelled up from $9,000,000 to $10,200,000.

It is obvious, therefore, that the difference between these two schemes is not formal or modal merely, but is a difference in their very nature and essence. Having fruits so widely different, they do present a choice, and we might not unnaturally expect that a convention or any other body having to act upon the subject, would perceive the difference, and signify their choice. Does the section in question show that the convention and the people did choose between these two schemes?

Whether we are considering an agreement between parties, a statute or a constitution, with a view to its interpretation, the thing we are to seek is, the thought which it expresses. To ascertain this, the first resort in all cases is to the natural signification of the words employed, in the order and grammatical arrangement in which the framers of the instrument have placed them. If thus regarded the words embody a definite meaning, which involves no absurdity, and no contradiction between different parts of the same writing, then that meaning apparent upon the face of the instrument is the one which alone we are at liberty to say was intended to be conveyed. In such a case there is no room for construction. That which the words declare, is the meaning of the instrument; and neither courts nor legislatures have the right to add or to take away from that meaning. This is true of every instrument, but when we are speaking of the most solemn and deliberate of all human writings, those which ordain the fundamental law of states, the rule rises to a very high degree of significance. It must be very plain, nay, absolutely certain, that the people did not intend what the language they have employed, in its natural signification, imports, before a court will feel itself at liberty to depart from the plain reading of a constitutional provision. On this subject Chief Justice Marshall says, speaking of the constitution of the United States: "As men whose intentions require no concealment generally employ the words which most directly and aptly express the ideas they intend to convey, the enlightened patriots who framed our constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and TO HAVE INTENDED WHAT THEY SAID" ( Gibbons v. Ogden, 9 Wheat. 188). To the same effect is the case of The People v. Purdy (2 Hill, 31, and 4 Hill, 384), upon the construction of that clause in the former constitution of this state requiring the assent of two thirds of the members of the legislature to every bill "creating, continuing, altering or renewing any body politic or corporate." The attempt in that case was to exempt municipal corporations from the provision. Bronson, J. dissenting from the judgment of the supreme court, says: "I do not so read the constitution. These words are as broad in their signification as any which could have been selected for the occasion from our vocabulary, and there is not a syllable in the whole instrument tending in the slightest degree to limit or qualify the universality of the language. If the clause can be so construed, that it shall not extend alike to all corporations, whether public or private, it may then, I think, be set down as an established fact that the English language is too poor for the framing of fundamental laws which shall limit the powers of the legislative branch of the government." "In this way a solemn instrument, for so I think the constitution should be considered, is made to mean one thing by one man, and something else by another, until in the end it is in danger of being rendered a mere dead letter, and that too where the language is so plain and explicit that it is impossible to make it mean more than one thing, unless we first lose sight of the instrument itself, and allow ourselves to roam at large in the boundless field of speculation. For one, I dare not venture on such a course. Written constitutions of government will soon come to be considered of little value, if their injunctions may be thus lightly overlooked; and the experiment of setting a boundary to power, will prove a failure. We are not at liberty to presume that the framers of the constitution, or the people who adopted it, did not understand the force of language." The judgment thus dissented from was reversed in the court for the correction of errors and Senator Paige, in his opinion in that court, says: "For one I can not consent to palter in a double sense with any part of the constitution. Through no agency of mine shall it be made to keep the word of promise to the ear and break it to the hope. I trust that the court will not hesitate to array itself in favor of the old and revered doctrine of strict construction — the only sound and safe doctrine for the government of either judges or legislators. If courts are allowed to depart from it, and venture upon the perilous experiment of substituting, for the clear language of the instrument, their own notions of what it ought to have been, or what its framers intended, there will be an end of written constitutions, and of all attempts to fix limits to legislative and judicial power."

Applying these principles to the section in question, we are unable to see that the words "in each fiscal year," are not placed in such connection with the residue of the sentence, as to convey the meaning which the convention and the people intended. We see no ground for thinking that a different arrangement of the words of the clause would be better calculated to express that meaning, and no ground for altering the arrangement, except a dislike of the meaning which is now clearly conveyed. The words in question, placed where they are, are full of significance, and say as plainly as language can, that the application of the remainders of revenue to the enlargement and completion of the canals, is to be made in each fiscal year, until their completion. The convention and the people have then chosen between the two schemes of finance of which we have spoken, both of which had been tried and their results ascertained. Taught by experience, they selected that scheme which they saw ensured success, avoided debt and facilitated economy — the scheme of paying as the means of payment should be produced from the revenues of the canals.

It is however contended, that conceding the words "in each fiscal year" to be so placed as to convey the meaning which the people and the convention intended, the whole clause taken together confers upon the legislature entire discretion over the manner of applying the revenues to the enlargement and completion of the canals. That although this application is directed to be made in each fiscal year, yet the scheme of the canal act is one mode of thus applying these revenues. That, therefore, as the whole subject of the manner of application is within the discretionary power of the legislature, the particular manner adopted in the act is necessarily constitutional.

If the words of the constitutional provision had been "in such manner as the Canal Board shall direct," no one would have supposed that board entrusted with the power to get up such a financial scheme as the act in question contains. No one would have doubted that the clause fixed, in the first place, the thing to be applied, viz.: the remainders of revenue; next, the object to which they were to be applied, the enlargement and completion of the canals; and next, the time of application "in each fiscal year until the canals shall be completed." And no one would have hesitated to admit that the discretion conferred by the use of the words "in such manner as the canal board shall direct," had reference to other points than those which had thus been fixed. Now it was never heard of as matter of law that the character of the agent had any thing to do with the extent or nature of the power conferred upon him That depends altogether upon the terms in which it is conferred, and not at all upon the character of the agent. This proposition is abundantly plain, and in general terms would scarcely be denied by any one. Yet the position we are examining is founded upon its practical denial, on the notion of the sovereignty of the legislature, which, although entirely accurate in reference to the parliament of Great Britain, as to which body it was first announced, has a very limited application to legislative bodies existing under and subject to the provisions of a written constitution. That the legislature possesses the legislative power of the state under the constitution is true; but this does not touch the question of the extent of that power. That depends upon the restrictions which the constitution has imposed; because, subject to those restrictions, the whole legislative power of the state is granted.

In respect to the revenues of the state, the legislature has not been entrusted by the people with unlimited power. On the contrary, the limitations to be placed on its power seem to have called for and received the anxious attention of the convention. The whole scope of the 7th article of the constitution manifests the most careful purpose to assign limits to a power which would otherwise be unrestrained. These restrictions, it is to be remembered, are imposed by the sovereign power upon one of the agents it has constituted to carry on government. We are not at liberty to think that restrictions upon the power of the legislature are unnecessary. The fact that such restrictions are contained in the constitution under which we sit, is, for us, conclusive proof that these restrictions are necessary. Nor can we regard them as unwise, or against a liberal and enlightened policy, and therefore to be evaded or construed otherwise than according to the spirit and policy of the provision themselves. If that policy differs from any other line of policy, then the latter is that which we are bound to avoid. The policy of the constitution is, for us, liberal enlightened, wise, and must be sustained by us so long as it remains embodied in the fundamental law.

Under the constitution, the thing to be applied to the enlargement of the canal is revenue — money. It is that which is to be applied; not something else, the product of the use of that money. It is to be applied, moreover, in each fiscal year.

The application is not to be delayed by accumulation, nor hastened by anticipation, but is to proceed year by year, using the revenues of the year for the work of the year, until the canals shall be completed. We are not at liberty so to construe the discretion conferred on the legislature as to the manner of application, as to bring it into conflict with the time of application which the constitution expressly specifies. The act in question provides that after 1854, the remainder of the revenues shall be applied, not to completing the canals, nor conditionally in case the canals shall then be completed, but absolutely to the creation of a fund to pay canal revenue certificates and interest thereon. If the canals should not be completed before that period, then the act and the constitution are directly in conflict; the one declaring that the revenues shall be applied to the completion of the work, the other that they shall be accumulated in a fund for paying the certificates.

We might with entire confidence rest the determination of these cases upon the grounds which we have already considered; but we think it proper also to consider the question whether this act does not purport to authorize the creation of a debt against the state, within the meaning of the prohibitions contained in the 7th article of the constitution. In considering that question, we will for the present omit to take into account the latter part of the 14th section of the canal act, because, if that has the effect ascribed to it by the counsel who maintain the constitutionality of the law, then it matters not what obligation the residue of the act seems to create, though it be the incurring of a debt in the most direct and unequivocal form. Even if the act and the certificates contained a positive promise to pay, and a pledge for payment of the faith of the state and of all its revenues, this clause in the 14th section would, in their view, prevent the act from being unconstitutional. Confining our attention at present, however, to the inquiry, what obligations, if any, are assumed by the state in case the provisions of the act are constitutional, let us consider the extent and nature of those obligations. For if the act creates any obligation which is to be regarded as a debt, within the meaning of the constitution, then even if we might have thought the scheme a mode of application, within the meaning of the 3d section of the 7th article, looking at that section alone, we should nevertheless be bound to construe the two sections together, and hold that the 3d section did not intend to authorize what the 12th section forbade.

If language has any meaning, the legal effect of the act, if valid, is at least to devote so much of the surplus revenues of the canals as shall actually be received after 1854, to the creation of a fund to pay the canal revenue certificates and the interest thereon. If this can be don in regard to one source of revenue, we see no reason why the same thing may not be done in regard to every source of revenue of the state, including not only all revenue which may arise from property, but also all which may be realized by the exercise of the power of taxation. Such an anticipation of revenue would no more create a debt than this bill does.

It may be objected that there is a distinction between a pledge of the revenues of property owned by the state and of the revenues to be derived from taxation; but the distinction does not affect the question. Whatever consumes the revenues of the property of the state, tends to render a resort to taxation necessary just to the extent to which the revenues from property have been consumed. It is therefore a matter of entire indifference whether one or another part of the resources of the state is drawn upon; for the substantial effect upon the financial condition of the state is the same in either case. If the constitutional provision against incurring debts permits such a scheme as this to be effectual, it is of small moment to inquire what it prohibits; for it provides no practical restraint whatever upon the power of the legislature. To attribute such an intention to the convention or to the people as to permit the one and prohibit the other, is to attribute to them an entire incapacity to comprehend the subject on which they were acting, and the effect of their own language. It is construing the constitution as if it were a penal statute, or a disfavored agreement in conflict with public policy, rather than as being the supreme law of the state, prescribed by the immediate source of all authority, to set bounds to the power delegated to its agents. We might on this branch of the subject rely wholly upon the plain sense of the constitutional provision in question; but a brief examination will serve to show that the obligations which purport to be created by this act constitute in its ordinary sense a state debt.

National or state debts assume a great variety of forms. Sometimes they take the most usual form of private debt — an obligation to pay the principal at a specified period, with interest in the mean time. Sometimes the period of payment of the principal is wholly at the election of the government; while at others the government is at liberty to pay at any moment after a fixed period. Sometimes the principal is not to be paid at all, but only a perpetual annuity, and sometimes only an annuity dependent on a life or lives, or for years. In short, these obligations assume every form which can tempt the possessor of money to part with it to the government, and are varied from time to time as one or the other seems most likely to accomplish the purpose of putting out promises and getting money in return. In all these forms, one common attribute is found, and one only; viz: that in consideration of money advanced to the state, the state promises whatever it is thought will be most likely to procure money to be advanced, it matters not what; and that which is thus promised is a debt. It may relate only to the income of particular property, or it may embrace the whole resources of the state. The extent of the obligation does not affect or qualify its nature. So long as there is an obligation assumed by the state, it constitutes a debt — something due from the state.

Again, if in the natural and expected course of events a period will come when the promises made by the certificates in question will ripen into a perfect obligation on the part of the state, then the issue of them conflicts with the prohibition of the constitution as clearly as if the debt arose immediately upon their being signed. When remainders of revenue from the canal shall have been received into the treasury of the state after 1854, the obligation of the state will have become perfect to pay upon these certificates the amount so received. It is true the payment can not be made without further legislative action, nor could it be if the certificates were immediate and general obligations on the part of the state. An appropriation is always necessary to effect actual payment, but the obligation is as complete without the appropriation as with it.

There is another view in reference to the obligations assumed by the state, which clearly shows that they amount to a debt. The 9th section of the act appropriates $540,000 to pay interest during the first two years. We have then the certificates containing, in conformity with the 2d section of the act, a promise to pay interest semiannually, and an appropriation to pay that interest. If this does not make a complete and perfect obligation, I am at a loss to conceive what would. It is true that the constitution authorizes appropriations for two years, but it does not authorize the creation of debts, and we are not at liberty so to construe the power to make appropriations as to bring it in conflict with the prohibition against creating debts. The appropriation in this case is to be taken in connection with the promise to pay contained in the certificates, and the scheme of raising money in which they form part of the machinery. Thus viewed, the certificates, so far as the two years interest in concerned, are as complete obligations of the state to pay money, as the promissory note of an individual is an obligation upon him to pay money. It is, however, to be observed that the 9th section, which makes the appropriations in question for the payment of interest, directs the payment to be made out of the avails of the sale of the certificates, the premiums thereon, and the interest which may have accrued on the deposit of such avails. On the other hand, the 8th section, which contains the appropriations for two years' work upon the canals, directs the payments to be drawn from the same sources, and also from the surplus revenues. If the appropriation to the payment of interest had been directly from the general resources of the state, we have seen that a debt would result. Does this indirect process alter the effect? The moneys arising from the sale of certificates are, when received, the property of the state. They can be paid out only in virtue of an appropriation by law. The persons who paid them to the state for certificates, no longer retain any interest in or control over them. The only ground on which a distinction can be suggested between payment from these funds in the hands of the state, and from its general resources, is that such payment is refunding part of the price of the certificates to the purchaser. Besides the answer that the transaction was not originally a sale of the certificates (for an advance of money on the original uttering of an obligation for the payment of money, is never a purchase of the obligation, but always a loan), it is sufficient to say, that the ground taken is not warranted by the provisions of the act. The amount which is to be repaid to the purchaser or lender, for principal, is not diminished by these payments under the appropriation in question. It is not part of what he advanced which he is receiving back, but a compensation for the use of what he advanced. This compensation being payable by the state in all events, creates a debt within the narrowest definition of that term which was pressed upon us at the argument.

It remains to consider the effect of the last clause of the 14th section of the act. This provides as follows: "The certificates to be issued under the act shall in no event or contingency be so construed as to create any debt or liability against the state, or the people thereof, within the meaning of section twelve, article seven of the constitution." The section of the constitution referred to had already rendered it impossible that the certificates should create any debt or liability against the state or the people, and a legislative provision of this sort was not necessary for the protection of that instrument. Is its effect to preclude us from inquiring whether the certificates, or the provisions of the act taken in connection with the certificates, purport to create a debt or liability against the state or the people thereof? We think not. It does not alter, or profess to alter, any one provision of the act. It leaves them all standing on the statute book, with the apparent force of law, and with the sanction of legislative approval, forming together a single scheme for raising money, on the faith of which capital is invited to assist the state. Under this state of things, can we be asked to take the ground that the state is to be regarded as coming into the money market, with a cunningly devised plan of promises, seemingly efficacious, but really known to be wholly unlawful and incapable of conferring any legal right, and by such means seeking to procure the advance of money? The respect which we owe to the legislature forbids us to listen for one moment to the suggestion. The clause in question is only a legislative declaration of the meaning of the constitution and an injunction upon the courts to construe the act accordingly. If it were to be regarded by us, and such effect given to it as is contended for, then the most flagrant legislative violations of the constitution may always be screened from the scrutiny of the courts by the addition of this simple clause. A single illustration will suffice to make the position plain that this clause is not to be regarded in considering the validity of the act. Let us suppose an act of the legislature directing that A may make his certificate stating that a mortgage from B to C is satisfied, and that upon such certificate being filed in the county clerk's office where the mortgage is recorded, the same should be satisfied and discharged of record; and further adding, that said certificate should not be construed to impair the obligation of a contract within the meaning of the constitution of the United States. Does any one think that such a law could be enforced, or that such a certificate would be any more efficacious to discharge the mortgage than a sheet of blank paper? Its absurdity is too plain to admit of argument. Yet this is the very case which we are considering.

In conclusion, we have seen that the act under consideration, in its material provisions and general scope, conflicts with the constitution of the state. Its provisions constitute a single financial scheme, and must stand or fall together. We have not been entrusted with the power of determining whether the policy of the constitution is wise or not. Nor has any discretion been given to us to enforce its provisions, or to refrain, as we may think the public welfare demands. Our duty is simply to declare what we believe to be the law, viz: that the act in question, being repugnant to the constitution, is void.

The judgment of the Supreme Court should therefore be reversed, and the mandamus refused.

EDMONDS, J.

Two questions are presented for our consideration in this case: 1st. Whether the contracts made by the letting board are valid and complete without the approval of the canal board? And, 2d. Whether the law itself is not void as repugnant to the constitution?

The first question is of minor importance — perhaps, if we are correctly informed as to the action of the legislature, of no moment whatever, except as to its influence on the decision of this particular case.

I have examined it, however, and am inclined to believe that the contracts were not valid, for want of the approval of the canal board.

The twelfth section of the act directs the canal commissioners, state engineer, c., to contract for the completion of the Erie Canal enlargement, c., upon such terms, and in such manner as the canal board shall direct and approve.

The return to the mandamus shows that the canal board have merely directed the terms in which the subordinate board shall contract, and that the canal board never have approved of the manner in which their directions have been carried out; never have inquired in what manner they have been attempted to be followed, nor whether they have not been entirely disregarded.

It is evident to me that it was the intention of the statute to require the judgment and decision of the canal board, and to commit to the subordinate board the mere executive duty of carrying out such decision. It is in no other manner that I can find aliment for the provision that the canal board shall "approve." Their refusing to do more than than they have done, is, in effect, striking the word "approve" out of the statute. It was their duty to do more than merely direct the terms on which the contracts should be made. It was necessary for them to approve the manner in which it was proposed to contract. When they did that and approved of the action of the other board, and not till then, were the contracts valid and effectual. It is thus alone that full force can be given to all the provisions of the statute.

The other question involves the constitutionality of the law, and whether the contracts executed under it, even if duly approved, would be valid?

In examining this question, I shall inquire,

1. What is the scheme of the constitution?

2. What that of the statute? And,

3. Whether they are repugnant to each other?

And I enter upon the examination thoroughly imbued with the principle, that the task of determining that a law is void by reason of its repugnancy to the constitution, is at all times one of extreme delicacy: that it ought seldom, if ever, to be done in a doubtful case: that it is not on slight implication and vague conjecture, that the legislature is to be pronounced to have transcended its powers ( Fletcher vs. Peck, 6 Cranch, 128): that it is only in express constitutional provisions, limiting legislative power and controlling the temporary will of a majority by a permanent and paramount law, settled by the deliberate wisdom of the nation, that we can find a safe and solid ground for the authority of courts of justice to declare void any legislative enactment ( Cochran vs. Van Sarlay, 20 Wend. 382): that in construing the language of a constitution we have nothing to do with arguments ab inconvenienti, for the purpose of enlarging or contracting its import, the only sound principle being, to declare ita lex scripta est, to follow and to obey ( People vs. Morrell, 21 Wend. 584): that there is no safe rule for construing the extent or the limitation of powers in a constitution other than is given by the language of the instrument which confers them, taken in connection with the purposes for which they were conferred ( Gibbons vs. Ogden, 9 Wheat. 188): and that the opposition between the constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other (6 Cranch. 188; 1 Cowen, 564).

When such an incompatibility is manifested, I agree with Ch. J. Marshall, whose sentiments I have already quoted, that the court, when impelled by duty to render such a judgment, would be unworthy of its station, could it be unmindful of the high obligations which that station imposes.

I proceed, then, to inquire,

What is the scheme of the constitution in that part bearing upon the question before us?

In order properly to understand it, we must become acquainted with the circumstances out of which its provisions sprung, and upon which it was designed they should act.

The Erie and Champlain canals, extending a distance of 427 miles, were completed in October, 1823, so far as to allow of their navigation to the whole extent. On the 1st of January, 1825, it was ascertained that their cost had been about $10,000,000, and the state was then owing a debt, contracted for their construction, amounting to $7,467,770.99. It was then already apparent that their revenues would be sufficient to discharge that debt at an early period. And as early as that date, there sprung up from these circumstances two conflicting systems of canal policy, which have more or less agitated our public councils for the last quarter of a century. One of them proposed an extensive scheme of internal improvements, involving the construction of many other canals, and the expenditure of many millions, which were to be obtained in the first instance by loans, and to be repaid out of the canal revenues. The other deprecated the creation of a debt, and insisted that such works could be safely undertaken and carried on only out of surplus revenues as they should accrue.

As one or the other of these systems of policy prevailed, and in the process of time each had by turns the ascendancy, our works of internal improvement advanced or halted, producing, however, in the mean time, as additions, the Cayuga and Seneca, the Crooked Lake, the Chemung and the Chenango canals, adding many miles of canal to our public works, and involving the expenditure of many millions more. The means for these expenditures, also, were obtained by loans. No one, at that day, was bold enough to advocate the policy of an irredeemable debt, but all looked forward to an early extinguishment of whatever might be contracted. This sentiment prevailed in the constitutional convention of 1821, and hence it was provided in the instrument which they framed, that the debt then existing should be paid when it became due, and that the revenues of the canals, including the auction and salt duties, should be inviolably appropriated and applied to the completion of the navigable communication between the great western and northern lakes and the Atlantic Ocean, and to the payment of the interest and the reimbursement of the capital of the money already borrowed or which should be borrowed to make and complete them (Constitution of 1821, Art. III, § 10).

During the ten years that ensued from 1824, the construction of five other canals had been authorized, and the canal revenues had already produced nearly enough to extinguish the debt that was owing in 1825.

On the 1st of January, 1835, the Erie and Champlain Canal debt was about $5,000,000; there was in the treasury accumulated from the revenues about $3,000,000, and it was evident that the revenues of the ensuing two or three years would be more than sufficient to pay the whole of that debt nearly ten years before it should become due.

At the same time the state owed a debt of over $2,000,000, contracted on account of the lateral canals, whose construction, as already mentioned, had been authorized within the preceding ten years, and an additional debt of at least $1,000,000 was anticipated to be necessary for their completion. The general fund, out of which alone the ordinary expenses of government were provided for, had been reduced by various drains upon it, from about $5,000,000 to about $200,000, so that it was evident that the ordinary expenses of government, which amounted to about $450,000 a year, must be provided for by resort either to the canal revenues, to a system of continual borrowing, or to direct taxation. The duties on auctions and on salt, which at that time amounted to $330,000 a year, and which by the constitution had been pledged to the payment of the canal debt, had been diverted for that purpose, from the general fund, to which they had once belonged, and where they had performed the office of contributing to defray the expenses of government. By amendments proposed to the constitution in 1832 and 1834, and which were adopted in 1833 and 1835, those duties were released from the constitutional pledge, and returned to their original avocation. So that in 1835, the original canal debt was provided for, another canal debt of about $3,000,000 had been authorized, the ordinary revenues were not sufficient for the ordinary expenses of government, and the canals were yielding a surplus of revenue (above the interest on the debt, and the expenses) of about $600,000 a year, with the certain prospect of continual augmentation.

Under this state of things, the legislature, at their session of 1835, directed the Erie Canal to be enlarged and a double set of lift locks to be constructed, and enacted that the cost of constructing, completing and maintaining the works, should be paid out of any moneys which might be on hand belonging to the Erie and Champlain canal fund, and provided that after 1837 the expenditures should be so limited as to leave from the canal revenues besides the auction and salt duties, an annual income to the state of at least $300,000. Thus appropriating out of the revenues previously pledged to the canal debt, five or six hundred thousand dollars a year for the ordinary expenses of government, and devoting the remainder of the revenues, when received and "on hand," to the task of enlarging the canal; and clearly defining the policy of effecting the enlargement by means of earnings actually on hand, and not by contracting a debt for that purpose.

But in 1838 that policy was abandoned, and instead of it was adopted the policy of hastening the enlargement by loans. The sum of $4,000,000 was authorized to be borrowed that year, and that policy continued until 1842, when the whole debt of the state, over funds on hand, which in 1835 had been about $4,500,000 was now $24,674,000.

In the mean time, the construction of two additional canals had been authorized — the Black River Canal at an expense of about $1,000,000, and the Genesee Valley canal at the cost of at least $2,000,000, and the moneys raised by loans for their construction had been in part expended. In that year (1842) the canal policy of the state again changed. Alarmed at the magnitude of the debt already contracted, and at the prospect of farther augmentation, the legislature directed all further expenditure on the public works, then in the progress of construction, to be suspended, imposed a tax on all the real and personal estate within this state, and pledged one half that tax to canal purposes, and so much of the canal revenue as should be equal to one third of the interest of the canal debt as a sinking fund for the redemption of the debt thus contracted.

And when the new constitutional convention assembled in 1846, the enlargement of the Erie Canal, and the construction of the Black River and Genesee Valley canals were unfinished; the total of the liabilities of the state was $25,258,597.95; the canal revenues, derived from tolls and water rents since the completion of the Erie and Champlain canals, had exceeded the expenditure, on account of them, nearly $19,000,000; the nett revenue for the preceding five years had averaged a fraction over a million and a half dollars, with every reason to believe that in ten years' time such nett revenue would exceed two millions and a quarter a year.

It was under such circumstances, and for such a state of things, that the constitutional convention of 1846 entered upon the duty of making permanent provision in relation to the finances of the state.

Each of the conflicting systems of policy already mentioned had its friends and advocates in that body and among the people, and they were distinctly presented to view when the constitution was framed and adopted.

These considerations must necessarily be borne in mind in examining the question now before us; for without them we can not know what were the purposes for which the constitution granted its powers or imposed its limitations, nor can we well comprehend the meaning or intention of the provisions it contains.

Such, then, was the subject on which the constitution was to operate, and the next inquiry is: What was its action on that subject? What rights, powers and privileges did it confer? And what obligations or restrictions impose?

In answering these questions in a becoming spirit of candor, it will never do to content ourselves with confining our attention to detached portions of the instrument, but its whole scope and tenor must be considered, and in such a manner that full force must be given to all its provisions.

Nor will it do to invoke the aid of the familiar, though not very well understood distinction between peremptory enactments, which must at all hazards be obeyed, and directory ones, which may be disregarded with impunity. The principle relative to directory statutes applied to a fundamental law, granting or limiting power, would be fraught with very dangerous tendencies.

Besides, when an enactment imposes an obligation to do or to abstain, its language is always imperative.

Keeping these principles in view, we find that this was the scheme of the constitution:

1. That no debt for the purpose of internal improvement, exceeding $1,000,000 should ever be contracted, unless sanetioned by the people, not speaking through the legislature, but voting directly on the subject at a general election:

2. That out of the canal revenues a certain amount should be set apart each year as a sinking fund, to pay the interest and redeem the principal of the canal debt then existing:

3. That a certain portion of the canal revenues should be set apart as a sinking fund, in like manner to redeem and pay the other debts of the state, and not comprehended in the term "canal debt:"

4. That after paying those sums, a certain amount ($200,000) should be annually set apart to defray the ordinary expenses of government; an amount not enough to meet all those expenses, but thereby relieving the people in some degree from the necessity of bearing direct taxation to carry on the ordinary operations of the government:

5. That the remainder of the revenues of the canals, after these objects should be accomplished, should, in each year, be applied to the purpose of enlarging the Erie Canal, c.:

6. That after these debts were all paid, and those works all completed, there should be appropriated annually from the canal revenues a sum sufficient to defray all the expenses of government, and thus relieving the people from any taxation for that purpose for all time to come:

7. And that whenever any debt should be contracted under the direct authority of the people, the same law which they should approve should impose a direct tax sufficient to pay the interest and redeem the principal within eighteen years.

Such, in a few words and in plain terms, are the provisions of the constitution on this subject. The next inquiry is, what are those of the act in question?

1. It appropriates the surplus revenues of the canal, for the years 1851, 2, 3 and 4, directly to the work of enlarging the canal, c.;

2. It authorizes, by its peculiar machinery of canal certificates, the officers of the state to borrow $9,000,000, within three years, and expend that for the same purpose;

3. It directs that sum to be returned within twenty-one years, and in the mean time an interest, not over six per cent, be paid on it;

4. It pledges the surplus revenues for that period of twenty-one years to the repayment of that sum of $9,000,000, and the interest upon it; and

5. It does not submit the question to the electors to be passed upon directly at a general election, but instead of that, declares that the certificates shall in no event or contingency be so construed as to create a debt or liability against the state or the people thereof within the meaning of the constitution.

It only remains to inquire whether there is any incompatibility between the statute and the constitution.

1. This act of borrowing $9,000,000, and providing for its repayment within a certain time, with interest for its use in the mean time, seems to me to create a debt. No subtlety of reasoning, no refinement of argument have been sufficient to dispel from my mind this plain and simple idea.

It is said that it is not a debt, but merely anticipating the resources of the state as derived from the canals. Now, it seems to me that all debt, whether by individuals or states, is merely an anticipation of resources.

Then again it is said that it is no debt, because only a portion of the resources of the state are devoted to the repayment. Does the fact that every householder has certain property that is not liable for the payment of his debts destroy or even change the character of the obligation that rests upon him to repay money that he has borrowed.

These, and such like suggestions, which were made to us on the argument, have not had the effect to persuade me that borrowing money is not contracting a debt.

And, if I read aright, the national debt of Great Britain — the existence of which no one probably will, at this day, deny — was begun in the precise manner adopted in this statute.

Smith's Wealth of Nations (vol. 2, p. 449), says that "When the resource of borrowing on personal credit was exhausted, and it became necessary, in order to raise money, to assign or mortgage some particular branch of the public revenue, government has done this in two different ways. Sometimes it has made this assignment or mortgage for a short period only — a year, or a few years, for example — and sometimes for perpetuity. In one case, the fund was supposed sufficient to pay, within the limited time, both principal and interest of the money borrowed; in the other it was supposed sufficient to pay interest only, or a perpetual annuity equivalent to interest. When money was raised in the one way, it was said to be raised by anticipation — when in the other, by perpetual funding.

"In Great Britain, the annual land and malt taxes are regularly anticipated every year, by virtue of a borrowing clause constantly inserted into the acts which impose them. The Bank of England generally advances at an interest, which, since the revolution, has varied from eight to three per cent, the sums for which those taxes are granted, and receives payment as their produce gradually comes in. If there is a deficiency, which there always is, it is provided for in the supplies of the ensuing year. The only considerable branch of the public revenues which yet remains unmortgaged is thus regularly spent before it comes in. Like an improvident spendthrift, whose pressing occasions will not allow him to wait for the regular payment of his revenues, the state is in the constant practice of borrowing of its factors and agents, and of paying interest for the use of its own money."

If then, it is a debt which this statute creates, it is in direct violation of the constitution, because it has never been submitted to or passed upon by the people.

2. It seems to me that the payment of interest on borrowed money, out of the canal revenues, was not intended by the constitution, because it tends to retard the advent of the period when the canal revenues can be applied to the general support of the government. Under this law, $540,000 a year, for twenty-one years, must be withdrawn from those revenues to pay interest on the $9,000,000 borrowed, and to that extent the appropriation, under section 3 of article 7 of the constitution, of $672,500 a year, to defray the ordinary expenses of government, must be postponed or affected, and to precisely that extent, a resort to direct taxation be rendered necessary to meet those ordinary expenses.

This consideration is not an unimportant one, for both in and out of the convention, and long prior to it, it was insisted by a portion of the citizens of the state, that they had derived no benefit from the canals, and yet funds belonging equally to them as to others had been expended for their construction, until direct taxation was necessary to carry on government, and they claimed that the canals should return those funds to the treasury, at least to the extent of avoiding taxation for the necessary expenses of government. Hence the appropriation in section 3, article 7, of the constitution, of $200,000 a year to defray the necessary expenses of the state, before any thing should be applied to the enlargement of the canal, c; the provisions that if, after eight years, the revenues unappropriated by that article should not be sufficient to defray those expenses, without a direct tax, the legislature might appropriate $350,000 a year from the canal revenues to those expenses, and the provision that when the canal debt should be paid and the works completed, $672,500 annually should be forever devoted to the ordinary support of government.

Thus the constitution provided, by a regard to all the interests involved, and in a spirit of compromise, that the debt should be paid, the works completed, and the people at large be exempted from direct taxation, nnless by a direct vote, given at a general election, they should themselves impose such tax.

And I entertain no doubt that it was the intention of the constitution to afford to the people of the state, in due time, out of the canal revenue, a full protection against direct taxation for the support of government, by appropriating what the public works might yield to that purpose.

Whatever may be our individual views of the policy that prevailed in and characterized that instrument, it is our solemn duty, as a court, sacredly to preserve its compromises. And it requires no argument to show that any act diverting those revenues to the payment of interest, or any other purpose, from that thus clearly defined in the constitution, must be in derogation of it.

3. The plain language of the constitution in reference to the surplus revenues is, that they "shall in each fiscal year be applied to the enlargement of the canal," c.

Does this authorize them to be anticipated, so that they may be expended before the fiscal year in which they accrue? If it does, then, with equal propriety, they may be withheld a series of years from the object to which they are devoted, for if any deviation from the explicit injunction of the instrument is to be tolerated, it may be as well in one direction as another.

It seems to me that it was the intention of the constitution to adopt fully the policy of 1835, and have the contemplated works carried on just as fast and no faster than funds were actually on hand for the purpose; and that it would be as wrong for the state to delay the application of those funds on the one hand, as it would be to anticipate them on the other; as wrong to divert them to any other purpose as to encumber and consume them by the payment of interest.

It is the plain language of the constitution which brings me to this result, and here, as throughout, I am governed by the rule laid down by the supreme court of the United States, in Gibbons v. Ogden (9 Wheat. 184), that as men whose intentions require no concealment generally employ the words which most aptly and directly express the ideas they intend to convey, the framers of the constitution must be understood to have employed words in their natural sense, and to have intended what they have said.

I have thus been conducted to the conclusion that this statute, in its general scope and purposes, is incompatible with the constitution, and must be declared void.

I have not been unmindful of the consequences that may flow from such a result, and which were so strenuously pressed upon our consideration by one of the counsel. I see much in those anticipated consequences to awaken regrets, but nothing to justify me in construing the constitution otherwise than according to its plain import. It would be a dangerous principle to permit the consequences that may flow from correcting an infraction of the fundamental law to perform the office of perpetuating such infraction. "The constitution and laws of a state are the basis of public tranquility, the firmest support of political authority, and a security for the liberty of the citizen. But this constitution is a vain phantom, and the best laws are useless, if they be not religiously observed. The nation ought then to watch very attentively, in order to render them equally respected by those who govern, and by the people destined to obey."

Such is the duty which now devolves upon this court in behalf of the state, and it ought to be performed with a fidelity commensurate with its importance.

Judges GARDINER and JEWETT concurred in the opinion of the chief judge and judges Johnson and Edmonds.

WELLES, J., dissenting.

The appeal in this case presents but one question for our decision, viz: whether the act of the legislature entitled "An act to provide for the completion of the Erie Canal enlargement and the Genesee Valley and Black River canals," passed July 10, 1851 (chap, 485, of the laws of that year), is in conflict with the constitution?

The case was submitted while the argument was in progress in the case of George W. Newell, auditor, c. plaintiff in error, against The People ex. rel. Erastus R. Phelps, defendants in error, which involved the same question; with the understanding that the argument in that case should be regarded as applicable to this.

The case of Newell against the People also involved another question, entirely subordinate to the one mentioned; the decision of which becomes unnecessary, in consequence of the views entertained by a majority of this court upon the main question, and which dispose of both cases.

As I have not been able to agree with my brethren who have united in declaring unconstitutional the law referred to, it is proper, and due to myself, to state the reasons which have led me to dissent from them.

The complaint in this case in the supreme court was upon a promissory note given by the defendant, Munson, to J. Watson Williams, or order, for $515, dated January 23d 1852, payable on the first day of February next, thereafter, at the Bank of the State of New York, and endorsed and transferred by Williams to the plaintiff Rodman.

The answer admits the making, endorsement and transfer of the note, as stated in the complaint, but avers that the plaintiff became the purchaser and owner thereof on the 6th day of February, 1852, and after the same was due and payable. It then sets up as a bar to the action, that the note was executed and delivered to Williams in consideration of the sale and assignment by him to the defendant, of a canal revenue certificate for five hundred dollars, issued by the comptroller under and in pursuance of the second section of the act before referred to, and for no other consideration whatever; setting out the certificate particularly, and alleging that the act is unconstitutional, that it gave the comptroller no authority to issue the certificate, which was therefore null and void, and that the note was therefore without any legal or valid consideration to support it: wherefore the plaintiff ought not to have or maintain his action against the defendant for the recovery thereof.

To this answer the plaintiff demurred, on the ground that the matters therein stated did not constitute a defence.

Judgment was given, at the special term, in favor of the defendant, on the demurrer, which was affirmed on appeal to the general term. From that judgment of affirmance by the general term, this appeal is brought

The judgment in the court below, holding the note upon which the action was brought to be void, was upon the ground that the act in question, by virtue of which the certificate which constituted the sole consideration of the note was issued, was in conflict with the constitution; that the certificate created no valid claim upon the state or any of its revenues, was without pecuniary value, and was therefore incapable of becoming by its sale or assignment to the defendant, a valid or sufficient consideration for a promise.

That is the question now to be considered.

The act is confessedly within the general scope of legislative power, and must be held valid and operative, unless shown to be an act of legislation which is forbidden, either in express terms, or by plain and obvious implication, by the organic law of the state. It is not pretended that the plan or scheme for the completion of the canals contemplated by the act in question, is in terms prohibited; so far from it, one of the arguments urged against the law is, that such a plan never entered the minds of the convention who formed the constitution, or of the people who adopted it. The objections to the law are of a character resting in argument and inference. The substance of them is, that it can not be carried into execution without transcending or overturning certain provisions of the constitution. Such objections, if they are sustained, should be, and are, as efficacious to defeat the law, at if it was in plain and express terms in contravention of the constitution.

It has, however, become a maxim, that a statute, the object and provisions of which are among the acknowledged powers of legislation, is to be presumed valid and constitutional, unless the contrary is clearly demonstrated. A discussion of the question should therefore proceed upon such presumption; and the objector be regarded as holding the affirmative of the question, and required to make out a clear case, free from any rational doubt ( Fletcher v. Peck, 6 Cranch, 87; ex parte M'Collum, 1 Cowen R., 564; Morris v. The People, 3 Denio, 381).

In Fletcher v. Peck, the question was whether a statute of the state of Georgia was in conflict with the constitution of that state — and Chief Justice Marshall remarks, that "the question, whether a law be void for its repugnancy to the constitution, is, at all times, a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative, in a doubtful case." And again: "The opposition between the constitution and the law, should be such that the judge feels a clear and strong conviction of their incompatibility with each other."

In ex parte M'Collum, Chief Justice Savage says: "Before the court will deem it their duty to declare an act of the legislature unconstitutional, a case must be presented in which there can be no rational doubt." In the case of Morris v. The People, Lott, senator, says: "The presumption is always in favor of the validity of the law, if the contrary is not clearly demonstrated." And in the opinion in this case in the supreme court, his honor, Justice Brown, correctly remarks that "for all the purposes of this argument the authority must be assumed in the first instance, because the legislative power extends over all the known and recognized subjects of municipal regulation, unless restrained by some positive rule of the fundamental law. Those, therefore, who put the legislative authority in controversy, take upon themselves the burthen of showing the limitation or prohibition."

In determining whether the law-making power has confined itself within its constitutional authority, there is this marked difference between the state legislature and the congress of the United States. The former is clothed with universal legislative power, excepting what is specifically withheld; while the latter possesses none but what is expressly granted, together with such as may become indispensable to their execution. An act of the state legislature is to be presumed valid, while that of Congress is in the first place to be shown to be within the power granted. In the one case the power is inherent, and underived; in the other it is delegated and limited. The act of the state legislature is entitled to the benefit of every doubt, while that of Congress must be free from uncertainty or fluctuation of the mind, in reference to its constitutionality.

In the consideration of this case, therefore, I propose to examine the several objections to the constitutionality of the law in question, as they were presented upon the argument; and if any or either of them shall be found to be unanswerable, and such as to establish beyond a reasonable doubt that the statute in question and the constitution are incompatible with each other, the former must yield to the latter, and be declared void, whatever may be the consequences to the state or to individuals.

A variety of considerations conspire to admonish us against such a conclusion, productive as it must be of wide-spread and universal disaster, unless impelled thereto by the soundest logic and the clearest principles of interpretation.

1. The act in question was passed by a large majority of the people's representatives, upon a full and deliberate examination of the question of its constitutionality; and it has been ratified by a legislature subsequently elected by substantially the same people who chose the delegates constituting the convention which framed the constitution, and who afterwards approved and adopted it.

2. The executive of the state has given his sanction to the law, and the state officers have carried it into partial execution

3. A number of the most distinguished and able jurists and expounders of constitutional law have deliberately examined the question, without any supposable bias from professional employment, and have written opinions in favor of the validity of the law, which are clear and decided, and without the expression of a doubt.

4. Important rights, in a great multitude of cases, involving immense sums of money, have become vested under this law, and through its means a million and a half dollars has found its way into the treasury of the state.

5. A large amount of the currency of the state is based upon the security of the canal revenue certificates, issued by the comptroller under the act, which is liable to be suddenly withdrawn from circulation, and thereby great confusion and derangement result to the pecuniary and commercial interests of the citizens. And, finally, a decision by this court, adverse to the validity of this law, will greatly delay a favorite and cherished object of the people of the state, upon the speedy accomplishment of which their prosperity greatly depends.

These considerations, either separately or collectively, I admit, are not controlling upon this court; yet it is not too much to say that they should lead us to the most profound circumspection, and induce us to require an exceedingly clear case before holding the law unconstitutional beyond a reasonable doubt.

The first objection to the validity of this law, is that it proposes to create a state debt in a manner not authorized by the constitution, but prohibited by that instrument. The objection is founded upon the 12th section of the seventh article, which is called the financial article of the constitution. That section provides that except the debts specified in the tenth and eleventh sections of the same article, no debt should be thereafter contracted by or on behalf of this state, unless in the manner specified in the said twelfth section. If the law under consideration depends for its authority upon the tenth, eleventh and twelfth sections, or any or either of them, no one will contend for its validity.

The question is, does it contemplate the creation of a state debt, in the proper and just sense of the term, and within the spirit of the twelfth section?

A debt, in its most general sense, is defined to be, that which is due from one person to another, whether money, goods or services; that which one person is bound to pay or perform to another; and it makes no difference, where the obligation is to pay money, whether it is payable out of, and limited to a specific fund, or whether the fund shall prove adequate or not, provided it belongs to, and is under the control, as to the object to which it is to be applied, of the person who engages to make the payment. If the state has a particular revenue or fund over which the legislature has unlimited control and disposition, and contracts to pay out of that fund, or from the proceeds of that revenue, the payment would be the withdrawal of so much of the public money, by which taxation might become necessary to supply its place. The contract would be a burthen assumed by the state, and would be literally a state debt.

I regard it essential to the idea of a state debt, that, by possibility, its satisfaction may directly or indirectly involve taxation, or require the application of funds of which the state has the unlimited control and disposition. If the fund out of which the payment is to be made, and to which the obligation is limited, be so circumstanced, that it can not be otherwise applied, and is connected with a preexisting duty on the part of the state to make the application, the contract superadds no obligation or burthen, and therefore creates no debt.

The only indebtedness of the state which, as I understand, is by any one claimed to be created by the act, on the supposition of its validity, arises in favor of the holders of the "canal revenue certificates," issued under the second section. The same section declares that the certificates shall purport on their face to be issued by virtue of the act, and without any other liability, obligation or pledge, on the part of the state, than such as is contained in the act. These certificates are to be of the surplus revenues of the canals, which, by the third section of the seventh article of the constitution, are devoted to be applied to the completion of the Erie Canal enlargement and the Genesee Valley and Black River canals, until the said canals are completed. The second section of the act then prescribes the form of the certificates, in which it is expressly stated that the state incurs no obligation or liability, and is under no pledge, except such as is contained in the act. The third and fourth sections of the act show what are the pledge and the obligation or liability of the state, here referred to. It is the creation of a fund by consolidating or adding together the surplus revenues before mentioned, from year to year, as each year's surplus shall be ascertained; which fund is to be applied to the payment of interest on the certificates as the same shall fall due, and to their redemption, as they shall become redeemable, or to the purchase of the certificates as provided in the fifth section: and such payment and purchases are to be made from such fund only.

Section fourteen provides against any claim upon the state under the certificates, in case of failure of revenues from the canals, by reason of pestilence, deficiency of crops, or breaches or damages to the canals, or from any other cause; and declares that the state shall in no event be liable to make up any deficiency of revenue or to redeem the certificates, in any other manner, than out of the canal revenues of the state, as before directed for such purpose, and that the certificates shall in no event or contingency be so construed as to create any debt or liability against the state or the people thereof, within the meaning of section twelve, article seven of the constitution.

It seems quite manifest that the legislature intended to guard this enactment against the objection under consideration; and if they have failed of their object, it must be because of the inadequacy of language to express such intention, or by reason of some inherent principle, or the object and provisions of the law, which render it repugnant to the twelfth section of said financial article. If there be any such principle, object, or provision, I confess I have not been able to discover either.

The principle is the anticipation and accumulation of such of the canal revenues as the constitution devotes to the object, which is declared by the same instrument to be the completion of the canals. The provisions, so far as I can discover, are in perfect harmony with such principle and object, so far, at least, as the question of state indebtedness is concerned. The question whether these revenues may be anticipated, or be allowed to accumulate, belongs to another branch of the argument, and will be considered in its proper place. The government is bound by the law of its organization to apply them to this object, and the same law has determined the legislature to be the forum to decide and direct the manner of the application. The legislature, in the discharge of the duty thus enjoined, and in the exercise of the discretion thus conferred, have decided to garner up these revenues, from year to year, into a fund, and to offer to capitalists an investment of their money upon the credit of that fund alone with an express disavowal in advance, of any superadded liability of the state; and with the money thus invested, to accomplish the object in view, with all the expedition of which its magnitude would admit: so that if the completion of the canals was to be a benefit to the state or its citizens, the advantages expected to flow from it, might be enjoyed at the earliest possible limitation of time, instead of postponing them to a remote period, which must have been inevitable, in case of the expenditure in each year, of only one annual surplus or remainder of revenues.

In ascertaining what is meant by a state debt, in the sense of the 12th section of the 7th article, regard must be had to the 3d section, which imposes upon the legislature a binding obligation to apply the revenues in question to the completion of the canals. As to the question whether that duty shall be discharged, they have no discretion. They have no authority to apply the revenues to any other object; and they can not disregard the injunction, to cause the application to be made, without a criminal neglect of duty. If, in attempting to obey this requirement, they have confined all persons who furnish the means therefor, either in money, property, or services, to these revenues, for payment or remuneration, it seems to me beyond the power of sophistry to turn the transaction into a state debt.

In the execution of the act, a large number of creditors would be made; but in my judgment they would not be creditors of the state, or the state their debtor; certainly not in the sense of the restraining clause referred to. All obligations to them would arise upon the credit of the fund exclusively, beyond which they could have no claim upon any legal or equitable principle. All they would have a right to demand of the state would be that the legislature should see that the fund was faithfully applied; and that duty or obligation of the state would spring, not out of the act, but the constitution itself. I do not recognize any difference in principle, as to what shall constitute an indebtedness, between the dealings or transactions of the state with individuals, and those of one individual with another. Whatever is a debt in one case, is also a debt in the other. The only difference between the two cases exists in the form and mode of the remedy or of obtaining satisfaction. It grows necessarily out of the fact that the state can not be sued by an individual. The state is sovereign, and, in theory, her power is supreme, and while, through her agents, she is supposed to enforce the performance of contracts, and redress injuries between individuals, according to established and known rules of law equity, she will, at the same time, do justice to individuals voluntarily in her own behalf, upon the same principles. This is what every citizen has a right to demand; and whatever may be rightfully demanded, may not be justly withheld. In the one case, the appeal to her power is by action, or some other legal process; in the other, by petition.

I know of no rule of jurisprudence or morals, nor of any theory of political economy, by which, in any given case, a man would have any superior or other claim upon the state, or by which the obligation of the latter would be greater or different than if the claim was upon an individual person. What would be due to the claimant must depend upon the intrinsic circumstances and merits of his case, and could not be measured by the nature or character of his adversary. In neither case should he receive more than he deserved, and that should be accorded to him in both.

The holders of the canal revenue certificates, and contractors under the act, are distinctly and repeatedly told, in the act, by the form and tenor of the certificates, and in the provisions of the contracts, that they are to look to the fund to be created by these remainders, and to no other source, for remuneration; and that the state is in no other event or contingency to be liable beyond it; and the courts are forbidden to give any other construction to the act.

With what propriety or show of justice, then, it may be asked, could the state be required to make good any deficiency, should there happen to be one, in the revenues, for the purpose of satisfying these claims? Such a demand might with entire fairness be met with an answer to the following effect:

"We offered to receive your money, or to employ you to do the work, upon certain terms and conditions, and in view of an expected state of things in the future, which you as well as we confidently believed would be realized; all of which you understood as well as we did. We possessed no knowledge of facts which were not accessible to you, equally with us. No deception has been practiced upon you. You have acted with your eyes open, with a view to your own interest, and with no regard to ours. We have in good faith performed the contract on our part, and if it has proved an unprofitable enterprise to you, it is not our fault, but your misfortune."

If the legislature should make any allowance to the applicants in the case supposed, it would be done as a gratuity, and not in satisfaction of demands which could be enforced in a court of justice, provided the state could be impleaded there.

If these surplus revenues were under the control of the legislature in regard to the object of their application, as is the case in respect to many of the state revenues, the case would be entirely different. The certificates would then be a state debt, and the whole frame work of the bill would be a plain and palpable violation of the constitution.

There would, in that case, be an agreement to apply moneys when received, which belonged to the state, and under the control of the legislature, in liquidation of the certificates, without any preexisting obligation to do so, or to make any particular application of the fund.

That the existence or amount of the remainder are matters of uncertainty, would not render the transaction the less a state debt; because the whole scheme is founded upon the assumption that there will be remainders to some extent; otherwise the whole structure is baseless and illusory. Whatever the amounts may happen to be, would belong generally to the state, and the agreement to apply them in the manner contemplated would be the assumption of a burthen, falling clearly within the definition of a debt, and which is forbidden by the constitution.

But suppose it be admitted that the plan for the completion of the canals which the act proposes, does fall under the denomination of a state debt, of what consequence is it, in view of the objection under consideration, provided it is a debt created not by the act but by the constitution? The only way a debt can be contracted by and on behalf of the state, is by the action of the legislature, in the enactment of a law for the purpose. Where is the burthen created or debt contracted by the act, which the constitution has not authorized and directed? None whatever has been, or can be shown. On the contrary, it is perfectly demonstrable that, by the act in question, no duty or burthen is assumed beyond what the constitution itself imposes, and which the legislature is not at liberty to decline. As well might a contract to pay for a job on the canals out of a single ascertained remainder, which had been received and in the treasury, be regarded a violation of the clause of the constitution restraining the state from contracting debts. There is not, to my mind, the shadow of a reason in support of the proposition embraced by the objection.

The next objection to the validity of the law, is that the constitution limits the application of the annual remainders of revenue to the time when the canals shall be completed, and that the act allows of and requires their application, until the nine millions of dollars, to be raised by the sale of the canal revenue certificates, and interest thereon, shall be paid out of the fund to be raised by the accumulation of such remainders; which, according to the plan and object of the act, would postpone the application far beyond the time when the canals would be completed.

This objection proceeds upon the ground that by the expression, "until the said canals shall be completed," is to be understood, the time when the canals are constructed and ready for use. But I incline to think this interpretation is too limited and contracted. The verb, to complete, like many others, is used with some indefiniteness of signification; and the idea conveyed by it frequently depends upon the connection in which it is found, or the object to which it reefrs. The connection here, is where provision is made for the disposition of the remainders, and direction given for their application; and it is declared that they shall be applied until the canals shall be completed; that is, they shall be applied as long as the application shall be necessary to such completion, or, until the application is complete. This, in my judgment, was the sense in which the words in question were intended to be used. To attribute to the expression the meaning contended for, would, for aught I can perceive, defeat one of the purposes of the section of which they form a part. If the means dedicated to the construction of the canals can not be applied after the materials are furnished and the labor is performed, it follows that the work must be paid for in advance or go undone. If the application can be made one day after the canals are in the condition contemplated, it can be done twenty years after, so far as the constitutional provision in question is concerned.

If it were necessary, in order to vindicate the validity of the act, in view of the objection under consideration, I think it capable of demonstration that these remainders are applied to the completion of the canals long before their construction is finished. The act anticipates them, and makes the application before they accrue, to an amount equal to the aggregate of the certificates authorized to be sold, with the interest to accrue thereon. The constitution itself makes the application in reality, by setting them apart for the purpose declared.

To say that these revenues can not be applied to the completion of the canals, except by the act of paying out the money to contractors and agents, would be maintaining a view so narrow as to amount to a perversion of language, and defeat the object of the provision. The application is made, as far as the act makes it, in the creation of the fund provided for in the third section of the act; or perhaps it would be more proper to say it takes place by virtue of the act, in regard to the several annual remainders, as soon as they are respectively ascertained; upon which they attach eo instanti to the fund, and the application then becomes complete and perfect.

The next objection relates to the application of the remainders to the payment of interest on the certificates. It is similar in character, and subordinate to the last, and if an answer has been furnished to that, it also disposes of this.

It will be proper in this connection to consider the question, whether the legislature, in obedience to the behests of the constitution, were at liberty to anticipate the future surplus revenues, with the view to the more expeditious accomplishment of the object to which they were devoted.

The only objection worthy of notice, which has been urged against it, arises out of the order of the words enjoining the duty. The requirement of the constitution is in the following language: "And the remainder of the revenues of the said canals, shall, in each fiscal year, be applied in such manner as the legislature shall direct, to the completion of the Erie Canal enlargement, and the Genesee Valley and Black River canals, until the said canals shall be completed." The argument of some of those who urge the objection is, that the times in which the moneys are to be expended are here fixed and determined; that the time for expending each remainder, is the same fiscal year in which it accrues, or is earned by the canals in operation. The fallacy of this view it seems to me is perfectly apparent. It consists in its utter impracticability. There never can be an ascertained remainder until after the close of the fiscal year; because, by the first and second sections, and the first part of the third section of the seventh article, large sums are to be first deducted and taken out of the net earnings of the canals, and applied to other objects, and what may be left is to constitute the remainder. The sections referred to evidently contemplate this process, once at least in each year, and it can not be done until after the year has expired, because the last hour of the year may increase or diminish the amount, and then, further time is required to collect together the accounts and vouchers of receipts and expenses, from which to determine the net proceeds of the whole of the canal revenues for the year, before making the deductions required. Until then, there is in fact no remainder in existence upon which the constitution can act. And it is remainders which the constitution directs to be applied. A remainder is defined to be any thing which is left, after the separation or removal of a part — the quantity left, after subtraction or deduction. Obviously, therefore, there can exist no remainder until after the deduction is made, which can not take place in respect to the canal revenues, as already shown, until after the expiration of the fiscal year which produces it. Another class of objectors have contended that the expenditure of each remainder or annual surplus, must take place in the year in which it is ascertained, which must of course be the year next succeeding the one in which it accrues.

I can conceive no way in which this can be done unless the canal commissioners shall let out a portion of the work for a sum, which shall correspond exactly with the amount of the remainder — not a dollar of it can go to the next year's work, and not a dollar of the next year's revenue can be anticipated. The work contracted for, must be completed the same year, or be paid for in advance. If in consequence of any accident or unforseen event, the work is unfinished at the end of the year, the contractor must forever go unpaid; and this rule must be observed every year, until the canals are finished — and all this, notwithstanding any inconvenience or sacrifice of the public interests, or the injustice to individuals which may result. Can any one in his senses deliberately entertain the belief that the constitution requires or admits of a construction, involving such folly and absurdity?

These difficulties have been attempted to be met and answered. It has been said that the canal commissioners may enter into contracts for the work founded upon an estimated balance or remainder, in advance of the time when it shall be ascertained; and if it proves insufficient to meet the contracts, provision is made in the tenth section of the third article of the constitution by which the deficiency may be supplied. That section authorizes the state to contract debts not to exceed a million of dollars at any one time, in order to meet casual deficits of revenues, or for expenses not provided for. Of course this argument can only be used by those who contend that the surpluses must be paid out in the same year in which they accrued, and before the remainder is ascertained.

Admitting the tenth section referred to authorizes the state to borrow money to provide for a deficiency in the estimated surplus, how does it answer the case of an unexpended balance? Suppose the contracts made the first of October (assuming the fiscal year to commence on that day), founded upon an estimate of what the remainder will amount to at the end of the year, and the event shows the remainder to be $500,000 more than the estimate, what shall be done with the excess? It can not go into the next year's operations, because that would be not only delaying the work contrary to the spirit of the constitution, but would produce accumulation, which is quite as objectionable, even in the mind of the objector, as anticipation. If $500,000, or $100,000, or any other portion of one year's remainder, may be added to that of the succeeding year, there is nothing in the constitution to prevent hoarding the entire remainders for ten or twenty years, before commencing the work of completing the canals.

But the conclusive reply is that there is no authority in the constitution for entering into contracts, founded on remainders which do not exist, and which, as has been shown, can not exist until the expiration of the year in which they accrue, and then there would be no necessity for it, because the amount would be ascertained. The tenth section referred to, is therefore totally inapplicable.

It has also been said, that contracts may be entered into, which may in their execution reach beyond the year in which they are made, and involve the expenditure of a larger amount than the ascertained remainder in the treasury, and pledging subsequent remainders for payment. But that would be anticipation in every sense of the term.

It must be nearly inevitable, it seems to me, that there would be balances on hand to a greater or less amount, or that there would be a deficiency, at the close of each year. It is possible that the whole ascertained remainder of a year would either with or without the fault of those charged with the administration of the fund, be in the treasury for years. What would in that case be done with the money? If applying, necessarily means expending or disbursing, and the constitution requires that to be done each year, I do not see but such unexpended remainder or balance, by a sort of non user, would escape from its destined object, and go into the general fund to be appropriated to any other purpose the legislature might direct.

The plan contained in the act of anticipating the remainders, obviates every difficulty which has been suggested. By it they are in each fiscal year applied to the completion of the canals, by becoming, in virtue both of the constitution and of the act, attached to the fund created for the same object the moment they came into existence. The object of the constitution is thus secured, and the manner of the application, which is left in express terms to the legislature, in no way conflicts with any of its provisions. That this plan was never thought of by the framers of the constitution, proves nothing against it. It certainly was not forbidden, and the legislature was at liberty to adopt it.

The constitution indicates no plan or manner of applying the surpluses, but leaves it entirely to the discretion of the legislature. It directs the time when they shall be applied, and that is all. That direction, as has been shown, has been complied with.

The next objection in order is, that as the act assumes to authorize the application of the remainders, exclusively to the payment of the certificates and the interest thereon, for a long period of time after the completion of the canals, and until the nine millions of dollars and interest are fully paid, it will, if effective, deprive the legislature of the power conferred by the third section of the seventh article of the constitution, to supply to the extent of $672,500 a year, any deficiency in the revenues applicable to the necessary expenses of the government, from the surplus revenues of the canals; which under the constitution they may do, as soon as the general fund debt shall be paid, or the canals are completed.

To my mind there are several sufficient answers to this objection:

1. If by the first section of the act nothing is to be applied to the work of completing the canals, except what the constitution directs, then, surely, the difficulty which the objection anticipates, is imaginary. All the means contemplated for creating and continuing the fund, out of which the principal and interest of the certificates are to be paid, are those specified in the first section. That section is a mere echo of the constitution, and must of course be limited in its effect by a just and sound interpretation of the constitution.

2. The third section of the seventh article of that instrument, permits the legislature, in a certain contingency, after a certain period, in its discretion, to divert, for a time, a portion of the revenues previously and in the same section set apart for completing the canals, to the purpose of supplying a possible deficiency in the revenues of the state for defraying the necessary expenses of the government; and that after the general fund debt shall be paid, or the canals shall be completed, then the sum of $672,500, or so much thereof as shall be necessary, may be annually appropriated to defray the expenses of the government. It is to be remarked, that all these provisions in relation to the future action of the legislature are entirely permissive. There is no direction or requirement — all is left to its discretion. When the time arrives that the legislature shall be at liberty to exercise the discretion conferred, it is to be assumed that they will act discreetly and justly, in view of the condition of the state and its finances, and with a proper regard to the just claims of individuals; and that if they shall then choose to exercise the power in question in thus diverting the revenues, notwithstanding the provisions of this act, they will have the power to do so. This is one of the risks which is necessarily incurred by the holders of the certificates, and by all persons advancing money, or rendering services upon the credit of the fund provided for. Such risk is what every person who deals with the state is obliged to run. From the nature of the case, there can never be any other guaranty on the part of the state than its own good faith.

While it can not be maintained as a general proposition, that one legislature can absolutely bind their successors, it is equally true that they may give pledges and assurances, in relation to the future action of those who come after them in power. The pledge, for good reasons, may not be fulfilled, or it may be repudiated, and the state disgraced; but this is never to be presumed, any more than if the state should borrow money on the faith of a law, directing a tax for its repayment, that a subsequent legislature would repeal the law, or refuse or neglect to levy the tax. And if the law under consideration contains a pledge, that no future legislature will make the diversion referred to of the revenues, it should be taken for granted, that the pledge will in good faith be observed. If no such assurance can be implied, it forms no part of the contract, its fulfillment can never with propriety be urged, and the objection falls to the ground.

It is furthermore objected that the act assumes to appropriate the canal remainders for more than two years, and without undertaking to specify any sum as the amount appropriated, contrary to the provisions of the 8th section of article seven of the constitution.

The said 8th section declares that no money shall be paid out of the treasury of this state, or any of the funds under its management, except in pursuance of an appropriation by law; nor unless such payment be made within two years next after the passage of such appropriation act; and that every such law, making a new appropriation, or continuing or reviving an appropriation, shall distinctly specify the sum appropriated, and the object to which it is to be applied, c.

The thing here forbidden is the payment of money out of the treasury, c., after two years from the passage of an appropriation act, specifying the sum appropriated, and the object to which it is to be applied.

I have examined the act in vain to find any direction or provision for the payment of any money whatever for any purpose except what is contained in the 8th and 9th sections; and there is certainly nothing in those sections in conflict with the provision of the constitution above referred to; but, on the contrary, they are in strict conformity with it.

The 8th section of the act appropriates $3,500,000, to be paid out of the avails of the sales of certificates, c., to be applied to the completion of the canals during the year next after the passage of the act, and the like sum from the same source, for like object, during the second year next after the passage of the act. And the 9th section appropriates $180,000 for the payment of the first year's interest on the canal revenue certificates, and the sum of $360,000 for the payment of the second year's interest on the certificates, out of the same avails, c. I can discover no other appropriations in the act; all its provisions which assume to dispose of the remainders, for a longer period than two years, amount to nothing more than a pledge or assurance for a faithful administration of the fund and can not be effectuated without further legislation. No future legislature could refuse or neglect to make the necessary appropriations to redeem the pledge, without proving recreant to their high duties, their oaths and their consciences; a supposition which is not to be admitted.

It is also objected that the act violates that clause of the constitution which declares that "the legislature shall not sell, lease or otherwise dispose of any of the canals of the state; but they shall remain the property of the state, and under its management forever" (art. vii, § 6).

Assuming that a sale of the revenues for a series of years to come, would be regarded a partial sale of the canals, it must be shown, in order to give force to the objection, that the transaction amounts to a sale. I, for one, do not think it does; and it was urged as I think with entire success, by one of the counsel who argued against the validity of the law, that it lacked several essential ingredients of a sale. But, however this may be, whether it amounts to a sale or not, if the act does just what the constitution says shall be done with the surplus revenues in question, and nothing more, as I have attempted to show, it is absurd to say the constitution is thereby violated. The fallacy of the objection is too apparent for discussion, or to entitle it to further notice.

It is likewise contended that the sixth section of the act, which requires the canal revenue certificates to be received as the basis of banking is repugnant to the 6th section of the 8th article of the constitution, which requires ample security for the redemption in specie of notes issued or put in circulation as money. The section reads as follows: — "The legislature shall provide by law for the registry of all bills or notes issued or put in circulation as money, and shall require ample security for the redemption of the same in specie."

A sufficient and conclusive answer to this objection is, that the legislature are the exclusive judges of the sufficiency of the security to be taken, and it is not for the courts to call in question their judgment. If they deem these certificates ample security for the redemption in specie of circulating notes, their decision is final and can not be inquired into.

I have now gone through with a consideration of all the objections, which counsel have thought worthy of being presented, to the constitutionality of the act in question. My own mind is not perplexed with the slightest doubt in regard to either of them. I have attempted to meet them fairly and candidly, and have shown, as it seems to me, that they are separately and collectively entirely untenable.

In the conclusion to which I have arrived, I regret to find myself standing alone among the members of the court of dernier resort, who take part in the decision.

This circumstance, perhaps, should lead to a distrust of my own judgment, even if it fails to shake my confidence in the correctness of the views I have expressed. However this may be, I yield to the decision, if not willingly, yet respectfully.

WATSON, J. — Did not hear the argument.

GRIDLEY, J. — Was not present at the decision.

Judgment reversed and mandamus denied.