
    Cole v. State.
    
      (Court of Appeals,
    
    
      Filed March 26, 1886.)
    
    Constitutional law—Constitution, section 19, article 3, not controvened by Laws lt-85, chap. 238—Nor does such act violate section 16, of article 3, in embracing two subjects—Nor is it void under sections 18 and 34, article 3—Captain of the port of New York.
    Chapter 338, Laws 1885, which ratifies, legalizes and confirms the acts of plaintiff, as captain of the port of New York, from May, 1883, to May, 1884, and confers jurisdiction on the hoard of claims to hear, audit and determine his claims for a reasonable compensation for such services rendered, does not contravene section 19, article 3 of the constitution, which forbids the legislature to audit or allow claims and is constitutional. It does not direct the board of claims to allow the claim, but simply confers on them jurisdiction to overlook strictly legal defenses, and, they having-passed on the merits as well as the amount of plaintiffs claim, this court will not disturb their findings. üaiwobth, J., dissenting. ,
    D. O’Brien, attorney-general, for state.
    
      J. Rider Cady, for respondent.
   Batallo, T.

This appeal must be determined on the facts found by the board of claims, and the conclusions of law stated by them in their decision, and excepted to by the state. Even if there should be found in the opinion of the members of the board any views in which we do not concur, that would not be ground of reversal, provided we concur in their conclusions of law.

Various points were argued by the learned attorney, general in support of the appeal, to which we will refer, but the main ground upon which he claimed, upon the argument, that the decision of the board of claims should be reversed, was that the act of 1885 (chap. 238) contravened section 19 of article 3 of the constitution of this state, which provides that “the legislature shall neither audit nor allow any private claim or account against the state, but may appropriate money to pay such claims as shall have been audited and allowed according to law.” This being the principal point urged, we will first give it our attention.

The act of 1885 (chap. 238, §1) enacts that the acts and services of Chester L. Cole, while acting as captain of the port of the city of New York, and of 11 other persons named in the act, while acting as harbor masters of the same port, “ actually performed by them from and including May 24, 1883, to and including May 24, 1884, are hereby respectively, ratified, legalized and confirmed.” Section 2 enacts that “ jurisdiction, is hereby conferred upon the board, of claims to hear, audit and determine the claims of the persons named in section 1 hereof, or of their legal representatives, for a reasonable compensation for such services rendered, and for expenditures incured by said individuals, respectively, as acting captain of the port of New York and harbor masters of the port of New York, from and including the 24th day of May, 1883, to and including the 24th day of May, 1884.” It is apparent that the act does not come within the prohibition against the auditing by the legislature ef any private claim. The act does not purport to audit the claims. This the legislature could not do, however just the claim or however legal it might be, if preferred against an individual. The constitution prohibits the legislature from exercising the power of itself auditing claims, which is in its nature judicial, but provides for the payment of claims which- shall have been audited or allowed according to law; thus recognizing the power of the legislature to provide by law for the auditing and allowing, by some appropriate tribunal, of claims against the state.

It is contended, however, that the act does come within the prohibition against allowing claims against the state. It must be observed that the act of 1885 does not even assume to allow these claims. It simply submits them to the arbitrament of the board of claims, a judicial body established for the purpose of passing upon claims against the state. It gives jurisdiction to that tribunal to hear and determine those claims, but does not dictate how it shall decide upon them. The only limitation upon the power of the board to decide is that it shall confine itself to a reasonable compensation for services performed and expenses incurred during the year specified. Under the authority conferred by the act, that tribunal, if it deemed the claims unjust, might have rejected them in toto. The power to hear and determine, includes power to reject as well as to allow. Construing the constitutional restriction literally, it was not violated by giving to the board jurisdiction to hear and determine. The enactment was consequently purely legislative, and in no sense an exercise of judicial power.

It is contended, however, that the enactment was violative of the spirit and intent of the constitutional prohibition, if not of its letter; that it was intended, not merely to prevent the legislature from itself acting judicially in passing upon private claims, but passing any law under which a private claim could be recognized by or established against the state, however just and equitable it might be, unless it was founded on a legal liability which could be enforced by the courts of justice against an individual or a corporation. We find no such restriction upon the legislative power in the state constitution. The act estabhshing the board of claims (Laws 1883, chap. 205, amended by Laws of 1884, chap. 60) confers upon the board jurisdiction to hear, audit and determine all private claims which shall have accrued within two years, except such as are barred by existing statutes. But that restriction was imposed by the legislature, and is subject to modification by it.

The statute of limitations and other legal defenses are, under the general law, available to the state as against a private claim preferred to the board of claims; and, as a general rule, it has been considered that the authority of the board is confined to the allowance of legal claims. But can it be maintained that it would be beyond the power of the legislature, in special cases wherein its judgment, justice and right demanded it, to give power to the board of claims to disregard, defenses strictly legal? We are unable to find in the constitution anything which deprives the legislature of the power of giving to the board of claims, or any other proper tribunal, jurisdiction to hear and determine claims against the state which are founded in right and justice, solely for the reason that they could not be enforced against an individual in the courts. Power to disregard the limitation as to time was exercised in chapter 204 of the Laws of 1884, which enacted that the claim of James Galloway before the board of claims should be exempted from the limitation contained in the act of 1883 (chap. 205); and by chapter 418 of the Laws of 1884, exclusive jurisdiction was conferred upon the board of claims to audit and allow the claims of owners of diseased cattle slaughtered to prevent the spread of contagious diseases, though it is by no means clear that for the public safety the legislature might not require the destruction of such cattle without making compensation. Where the creation of a particular class of liabilities is prohibited by the constitution, it would of course be an infraction of that instrument to pass any law authorizing their enforcement; but, in the absence of any such prohibition, there is no good reason why the state should be powerless to do justice or to recognize obligations which are meritorious and honorary, and to provide tribunals to pass upon them. The legislative power is sufficient, even as between individuals, to afford new remedies and to create liabilities not before existing, where they are based upon general principles of justice.

As a general rule, money expended or services rendered by one individual for the benefit of another, but without his request or authority, do not create a legal liability on the part of the person benefited to make compensation. But a law which should provide that in every such case if the party benefited ratifies the acts of the other, and accepts the benefits, he should be hable, would be free from objections so far, at all events, as it should apply to future transactions. Where the legislature is dealing with the imperfect obligation arising from such a state of facts, it seems to us that it does not transcend its powers by passing a law affording a remedy even in respect to past transactions, where the state adopts the acts, and is the party to make the compensation, and no right of individuals which are protected by the constitution are invaded.

In this point of view, it is material to consider the nature of the claim which the board of claims was empowered by the act of 1885 to hear and determine, and the determination which it made. The office of captain of the port was created by chapter 436' of the Laws of 1860. Section 1 of that act authorized the appointment of a captain of the port to hold office for three years, and section 2 prescribed his duties, which were to prosecute for all violations of law in respect to the harbor of New York; to provide suitable accommodations at the piers, slips, and basins in said harbor, for the lading and discharging of vessels; and to designate anchoring grounds for vessels in said harbor. Section 3 authorized the appointment of eleven harbor masters to assist the captain in the discharge of Ins duties. Section 6 provided that all fines and penalties recovered and fees collectible should constitute a fund, to be kept by the captain of the port; and section 7 directed that this fund,' after deducting office and legal expenses, be divided by the captain of the port between himself and the harbor masters. The act of 1862 (chap. 487), entitled 66 An act defining and regulating the powers, duties, and compensation of the captain of the port and harbor masters of the port of New York,” was a revision of the former acts relating to those subjects. Section 1 provided for the appointment of a captain of the port and eleven harbor masters. The captain was to hold office for three years, and until another should be appointed, unless sooner removed for cause. Section 5 directed that he should collect all the fees, etc', and divide them equally, after deducting expenses, between himself and the harbor masters. Section 6 prescribed the fees which were, on all domestic and foreign vessels registering over 150 tons, one and one-half cents per ton, and on all other foreign vessels three cents per ton, to be computed upon the tonnage expressed in their registers. Section 14 provided: The term of office of the present captain of the port and harbor masters of the port of New York shall continue during the terms for which they were appointed, unless they shall be removed for cause, according to the provisions of this act, and the present captain of the port and harbor masters shall be governed by and be subject to this act.”

It is very clear that the office of captain of the port was not created by the act of 1862, but was recpgnized by that act as a then existing office. The claimant was appointed under that act, and it-was admitted by the state, on the trial before the board of claims, that on the 5th of January, 1880, the claimant was duly appointed by the governor, by and with the consent and advice of the senate, to the office of captain of the port of New York for the term of three years, and until another should be appointed; that he duly qualified and received his commission, and entered upon the discharge of the duties of his office, and that no successor had been appointed in his place. In 1876 the supreme court of the Unitéd States decided, in the case of the Inman Steamship Co. v. Tinker (94 U. S., 238), that so' much of the act of 1862 (chap. 157) as required vessels entering the port to pay a per centage per ton, to be computed on. the tonnage expressed in their registers, was a violation of the provisions of the constitution of the United States, which prohibited the states from laying duties on tonnage; the court at the same time impliedly acknowledging the propriety, and even the necessity, of the other provisions of the act of 1862. The means of compensation attempted to be provided for the captain of the port and harbor masters by the act of 1.862 being thus cut off, the legislature of this state, on the 1th of May, 1883, and while the claimant was still in office, passed the act (Laws 1883, chap. 357, entitled “An act to provide for the appointment of a captain of the port of New York, and deffiiing and regulating the powers, duties, and compensation of said officer, and repealing chapter 187 of the Laws of 1862.” By section 1 the governor, by and with the advice and consent of the senate, was authorized to appoint an officer to be called “ captain of the port of New York,” and, to assist him, eleven harbor masters. By section 13 the captain was to receive an annual salary of 83,500, and, in addition thereto, such moneys as should have been necessarily expended for office and legal expenses, not to exceed in any month $200. By section 16, chapter 167 of the Laws of 1862 was repealed, and the offices created b y that act were abolished. No appointment of captain of the port or harbor masters appears to have been made under that act of 1883, nor does it- appear in the case that any person was authorized to discharge the duties of these offices. The act contained no provision, such as is contained in the act of 1885 (chap. 238, § 1), declaring these offices vacant. The office of captain of the port was not, as has been shown, created by the act of 1862 (chap. 167); and as the act of 1883 purported to abolish only the offices created by the act of 1862, the claimant did not regard his office as abolished, and accordingly held over from 1883 to 1881, without interference, as far as appears.

On the trial before the board of claims the board took proofs concerning the services rendered, their necessity and value, and the expenses incurred by the claimant, and found as facts that the claimant, from and mcluding May 21, 1883, to and includmg May 21, 1881, performed and rendered acts and services as captain of the port of New York, and that a reasonable compensation for such acts and services was the sum of $3,150; that during the same period the claimant necessarily incurred and paid, as incident to said acts and services as captain of the port, for rent of - office, janitor’s fees, coal, stationery and other miscellaneous office expenses, the sum of $410, amounting together to $3,560, no part of which has ever been paid; that by the act of 1885 said acts and services were ratified and confirmed, and jurisdiction was conferred upon the board to hear, audit and determine the claim, and on those facts the board found, decided and determined that the claimant was entitled to an award for the sum of $3,560.

The board appear, from these findings and conclusions, to have passed upon the merits as well as the amount of the claimant’s claim ; and, whatever may have been said in the opinions of the different members of the board, their conclusion and decision cannot be disturbed if the board had the power to decide as it did, and the findings disclose no legal error in the decision. One of the commissioners composing the board was of opinion that the offices of captain of the port and harbor masters were not abolished by the act of 1883, and there was at least plausible ground for that view. The claimant was appointed to hold office until a successor should be appointed, and continued to perform his important official duties, and incur expenses therein, after May, 1883, until May, 1884, without, so far as appears, any question having been raised as to his right so to act, and no person being appointed in the interim to perform those duties. The means which the legislature had attempted to provide, by the acts of 1860 and 1862, for his compensation, failed by reason of being found to be violative of the constitution of the United States; and the legislature, having these facts before it, in 1885 ratified and adopted the official acts of the claimant, and gave jurisdiction to the board of claims to pass upon his claim for a reasonable compensation and the amount thereof. Even if it should be concluded that the claim was not one which would have been enforced in an action in the courts if the services had been rendered to an individual, yet it had a basis in justice and equity, and, in our judgment, it was within the constitutional power of the legislature to confer jurisdiction on the board of claims to take cognizance of and determine it.

The further objection is taken that the act of 1885 violates section 16 of article 3, in embracing two subjects, viz., the legalizing of the acts of the captain of the port and harbor masters, and the subject of conferring jurisdiction on the board of claims to hear and determine their claims, and the provision declaring from what date their offices should be deemed vacant. We think that, even if the act is regarded as local or private, all these subjects are sufficiently connected to authorize their being embraced in one act. They all relate to the captain or the port and harbor masters of the port of Hew York; and if the act had borne that title it would be unobjectionable, under the decision of this court in Board of Water Commissioners v. Dwight (3 N. E. Rep., I82), decided December 8, 1885. It legalizes the acts of those officers during a specified period, authorizes the submission of their claims for compensation during the samé period to the board of claims, and declares from what date their offices shall be deemed vacant. It was not necessary to pass a separate act for each of these provisions,

The objection that the act of 1885 is a private or local bill creating, increasing or decreasing fees, percentages or allowances of public officers during the term for which they were appointed, or that it grants extra compensation "to public officers, and therefore void under sections 18 and 24 of article 3, is, in our opinion, untenable. The act does not do either of the prohibited things. It does not grant any extra compensation or increase fees, percentages or allowances to officers during the term of office for which they were appointed. The whole theory of the counsel for the state is that, during the time the services were rendered, the claimant was out of' office and his office abolished. It grants no extra compensation. It merely gives jurisdiction to hear and determine a claim for reasonable compensation for services rendered in a case where the compensation attempted to be provided by law failed by reason of the invalidity, under the constitution of the United States, of the provision for such compensation, and the claimant had consequently rendered beneficial services, accepted and ratified by the legislature, without any valid provision for their compensation, It does not come within the evils at which the constitutional prohibition was aimed.

The point taken before the board of claims that the act of 1885 was in contravention of the constitution of the United States, was not insisted upon on the argument in this court, and has no foundation. The only provision of the act of 1862 which was subject to that objection was that which required vessels loading or unloading in the port ■of Hew York to pay a certain percentage per ton, to be computed on the tonnage expressed in their register or certificate of enrollment. Inman Steamship Co. v. Tinker, 94 U. S., 238.

The award of the board of claims should be affirmed, with costs.

All concur, except Danforth, J., dissenting.  