
    Nathan Davidson, plaintiff and appellant, vs. The Mayor, &c. of the City of New York, defendants and respondents.
    The act of the legislature “ to provide for compensating parties whose property may be destroyed in consequence of mobs or riots,” passed April 13, 1855, does not conflict with any provision in the state of federal constitutions, and is a valid law.
    (Before Barbour, Monbll and Garvin, JJ.)
    Heard March 17, 1864;
    decided April 30, 1864.
    This action was brought to recover damages for personal property destroyed by a mob in the city of New York, in July, 1863. The complaint alleged that at the times hereinafter mentioned, the plaintiff was a boarder in the family of William Treitel, at 175 East Thirty-third street, in said city, and was the owner, on the 14th day of July, 1863, and possessed of, the following goods, chattels and property, and the same were reasonably and justly worth the sums set opposite each article viz: (specifying various articles of wearing apparel, a watch, money in pocket book, &c.,) the whole amounting to the sum in value of $ 127. The plaintiff further alleged that on said 14th day of July, 1863, a mob of disorderly and riotous individuals collected together in the city of New York, and created a terible riot, which continued through a period of about four days, during which time they terrified, overpowered and killed many law-abiding citizens, and threatened to destroy, and did destroy a large amount of valuable property, and.openly defied, and terrified and overpowered, all the public authorities of the city, and defeated all their efforts for the preservation of peace in said city. That on said 14th day of July, 1863, and near the close of said day, while the said rioters were lawlessly and violently engaged in pillaging and destroying the property in in the store kept by Mr. Geo. W. Carpenter, at the northeast corner of Thirty-third street and Second avenue, and in destroying the said store and premises by fire, and thereby threatening to burn, pillage and destroy the next adjoining premises, being the house, where the plaintiff then boarded, this plaintiff, being then occupied in endeavoring to save the persons and property in his said boarding house, and necessarily compelled to pass through the crowd of said rioters, was suddenly and violently fallen upon, knocked down, and trampled upon by some of said rioters, acting in concert with the whole mob, and, before he could regain his feet, he was deprived of and had lost all of the above described property, of the value as above stated, the same being carried away from his possession by the said rioters, and in consequence of said mob and riot, and being irrecoverably destroyed and lost to this plaintiff. That the plaintiff used all diligence, and did every thing that lay in his power to prevent the carrying away and destruction of his said property, but was unable to preserve his said property, or any of it, from lawless destruction by said mob, in consequence of the unexpectedness and suddenness of their gathering together, and of their attack upon him, and of the overpowering force and extent of their violence. That the said destruction of his property, was not occasioned, or in any manner aided, sanctioned or permitted by negligence or carelessness on his part; nor was he apprised of any attempt or threat to destroy said property before the attempt was made upon him; nor had he notice of the existence of any mob in that neighborhood until the hour of such attack. That the defendants had notice of said riot, and the existence of said mob in said city, immediately upon -its first breaking out and sometime before the destruction of the plaintiff’s property as aforesaid ; but did not themselves, as by law it was their duty to do, put down the violence of said mob, or preserve either the peace of the city or the said property of the plaintiff; but they negligently and carelessly allowed the said mob to rage and increase in violence, to the great terror and danger of the citizens and the destruction of a vast amount of property, including that of this plaintiff as aforesaid. That by reason of the said negligence of said city authorities, the defendants herein, and by virtue of the acts in such case made and provided, the said defendants have become and are liable to pay to him the damages so sustained hy him as aforesaid by reason of said riot, and in consequence of the acts of said rioters as aforesaid, which damages the plaintiff alleged to be the value of said property, viz : the sum of $127, with interest thereon since the said 14th of July, 1863. • •
    The plaintiff further alleged that after the above stated events, and on or about July 31st, 1863, he did present to and leave with the' comptroller of the city of Hew York, a written statement, full, detailed and accurate, of the property so lost by him, as aforesaid, and of his claim for the same, and a written demand for the adjustment or payment of the same, duly verified, and in all respects made out as by statute required; and afterwards, at the expirarion of twenty -days from such presentation, he did, in due form and manner as by law required, make a second written demand upon the said comptroller for the payment, settlement and adjustment of his said claim; arid notwithstanding said demands, the said comptroller has, and the said defendants hitherto have neglected and refused to make any payment or adjustment of the same.
    Wherefore, pursuant to the act in such cases provided, the plaintiff prayed for judgment in his favor against the defendants, for his damage above stated ; to wit: the sum of $127, with interest since the 14th of July, 1863, besides costs.
    The defendants demurred to the complaint, on the ground that it did not state facts sufficient to coustitute a cause of action. The demurrer was sustained at special term, and the plaintiff appealed.
    
      Thomas B. Barnaby, for the appellant.
    The act in question violates neither the state nor the national constitution.
    
      I. It does not impair the obligation .of contracts within the meaning of art. 1, § 10 of the U. S. constitution.
    1. The legal presumption is in favor of the constitutionality of the act. The courts will not declare it otherwise, unless it is clearly and beyond reasonable doubt, in direct violation of the express provisions of the fundamental law. (Fletcher v. Peck, 6 Cranch, 87, 128. Ogden v. Saunders, 12 Wheat. 294. 1 Cowen, 564. 3 Denio, 881. 3 Selden, 109. 19 Barb. 81. 26 Wend. 599. 5 Sandf. 10. 24 Barb. 446. 27 id. 575. 20 Wend. 365, 381. 7 N. Y. Rep. 9, 109. 24 Barb. 232. 3 Denio, 381. 17 N. Y. Rep. 235. 1 Bald. 74, 75.)
    2. To make the act unconstitutional, it must operate, not incidentally but directly, as well as injuriously, upon the vested rights of parties under existing contracts. It must practically destroy the rights of property itself, and not merely its use and value. (In re Klein, 1 How. 277. Kunsler v. Kohaus, 5 Hill, 317. 1 Story’s Const. Law, p. 163. Wynehamer v. The People, 3 Kern. 378. Vanderbilt v. Adams, 7 Cowen, 349. The People v. Walbridge, 6 Cowen, 512. City of New York, v. Miln, 11 Peters, 101. The People v. Hoym, 20 How. Pr. 76. Sedg. on St. and Con. Law, 521.)
    3. This act neither takes away any property nor destroys any vested right of the city under its charters. It is still the duty and the province of the state government to promote, by legislation, the welfare of the whole community, and secure the general prosperity of all her citizens, whether residing in cities or elsewhere. The power of the state government over all the property within its limits for these purposes was never surrendered, and the city government is only a part of the state organization for that end.
    
      (a.) The state legislature has supreme power for all purposes of civil government, except there is an express prohibition in the constitution; and they are the sole judges of the propriety of exercising that power at any given time or place. (The People v. Draper, 15 N. Y. Rep. 543. Varick v. Smith, ‘ae, 131. Town of Guilford v. Supervisors of Chenango, 
      13 N.Y. Rep. 143. Brewster v. City of Syracuse, 19 id. 116. 4 id. 419. Leggett v. Hunter, 19 id. 445.)
    (b.) Among the duties of the government to its citizens one of the' most sacred is that of protecting them in the possession of their property, as well as their liberty and lives, in every part of the state. (15 N. Y. Rep. 556. Lindenmuller v. People, 33 Barb. 548.)
    (c.) The general police powers of the state, the power of taxation, and the right of eminent domain, are, inherent, sovereign powers, which are to be considered as coupled with, and made a part of the city charters, and limiting the controlling powers of the municipal corporations. (Sedgwick on St. and Con. Law, 533. 21 Pick. 542.
    
      (d.) These powers are expressly reserved and certainly not expressly granted in the charters themselves. Nothing can be intended or inferred in favor of the corporation beyond what is expressly granted. (11 Peters, 420. Dungan Charter, §§ 2, 4, 7, 8, 16, 17. Montgomery Charter, §§ 14, 37, 38.)
    (e.) The exercise of such powers by the legislature of a state in similar cases has frequently been sustained by the courts. (Vanderbilt v. Adams, 7 Cowen, 349. Com. v. Tewksbury, 11 Metc. 55. Com. v. Alger, 7 Cush. 53. Police Bill. Quarantine Cases.)
    
    
      (f.) Corporations as well as individuals must make some sacrifice to the public welfare and to the exigencies of a new condition of society. (Taylor v. Porter, 4 Hill, 140. 2 Kent’s Com. 13, 140, and cases. Albany street, 11 Wend. 149. Bloodgood v. Mohawk R. R. Co., 18 id. 59. John and Cherry streets, 19 id. 659. 4 Barb. 64. 2 Selden, 366. 3 Kern. 392. 37 Barb. 440.)
    
      (g.) Public municipal corporations, as distinguished from private coprorations, cannot claim that any legislation which is for the public good of the state is in violation of their chartered rights.
    They cannot thus interpose between the state and the citizens thereof in such a case. Their right and power over the property granted to them by charter is subject to the supreme authority of the state, so far, at least, as may be necessary to enforce such legislation. (Hoff. Treat on Corp. 44 and cases, and 45. 2 Kent’s Com. 305. 4 Wheat. 418. 13 Wend. 325. Butler v. Pennsylvania, 10 How. 416. Charles River Bridge case, 11 Pet. 420. Com. v. Farm. and Merch. Bank, 21 Pick. 542. Backus v. Lebanon, 11 N. H. Rep. 19. Piscataqua Bridge case, 7 id 35. Barber v. Andover, 8 id 398. Sedg. 633, 4. 10 How. 534. 8 id 569, 581. 5 Cowen, 542. 7 id 58.)
    II. The act in question does not infringe upon the state constitution, art. 1, § 6. It takes no property of the corporation without due process of law, by its own mere operation ; nor does it take property for public use without just compensation.
    1. The taking must be a physical taking of the property itself, which is not done by this act. (Sedg. on St. and Con. Law, 521.)
    2. This act is not a judicial determination by the legislature of the rights of parties, but simply provides for the regulation and government of cases that, might thereafter arise, and lays down the conditions of a recovery therein. (Bates v. Kimball, 2 Chip. 77. Davison v. Johonnot, 7 Metc. 389. Sedg. St. and Con. Law, 167 to 170. Wolfe v. Sup. of Richmond Co., 11 Abb. 272. 19 How. 360.)
    3. It provides for a recovery by the established modes of proceeding in all actions, creates ample safeguards against inequitable or illegal verdicts, and rests upon principles so just, so rational, and so often recognized as grounds of recovery for damages sustained, that the only wonder is that there was any necessity for a statute upon the subject. (The Mayor v. Furze, 3 Hill, 612. Lloyd v. The Mayor, &c. 1 Seld. 369. Hutson v. The Mayor &c. 5 id. 163. Wilson v. The Mayor, 1 Denio, 595.)
    
      John K. Hackett, for the respondents.
    I. It is clear, both upon principle and authority, that at common law, the defendants would not he liable in this action. (Boyland v. Mayor &c. 1 Sandf. 27. Levy v. Mayor, Id. 467. Griffin v. Mayor, 5 Seld. 456. Howe v. City of N. O. 12 
      La. An. 481. Prather v. City of Lexington, 13 B. Mon. 569. Opinions of Counsel to Corporation, 1849 to 1860, p. 23.
    II. The act of 1855, so far as it attempts to create any liability against the defendants, is unconstitutional.
    
      (a.) The defendants are possessed of private property, which they hold and enjoy upon the same tenure upon which it would be held and enjoyed in case it had been conferred on any private individual. (Dongan Charter, §§ 6, 12. Davies’ Laws, pp. 151, 157. Montgomery Charter, § 1. Davies’ Laws, pp. 165, 169. Bailey v. Mayor, 3 Hill, 531, 539. Britton v. Mayor, 21 How. 251. Benson v. Mayor, 10 Barb. 223.) As respects their private property, and its disposition, the defendants are as free from legislative interference and control as is any private individual in the possession and enjoyment of his property. (Hoffman’s Treatise, pp. 44, 73. Atkins v. Randolph, 31 Verm. R. 226. Green v. Mayor, 5 Abb. 505. Valentine’s Laws, p. 1199.)
    (6.) Having thus determined the nature and character of the defendants' property, and tenure upon which it is held, it now becomes material to inquire in what particular and to what extent the act in question invades or violates the rights of the defendants. 1st. It creates a debt agqinst them without their assent, and charges their private property with its payment. 2d. In its' practical effect it transfers the private funds of the defendants, without their consent, to the individual sufferers from the riots. In each of these particulars the act is unconstitutional. (Hampshire v. Franklin, 16 Mass. R. 83. Inhabitants of Medford v. Learned, Id. 216. Atkins v. Randolph, 31 Verm. 226. Pittsburgh and Steubenbille R. R. Co. v. Gazzam, 32 Penn. R. 340. White v. White, 5 Barb. 484. Matter of Albany street, 11 Wend. 152. John and Cherry streets, 19 id. 659, 675. Bloodgood v. Mohawk & Hud. R. R. Co., 18 id. 59. Wilkerson v. Leland, 2 Peters 657. Taylor v. Porter, 4 Hill, 144. Powers v. Bergen, 2 Seld. 366. Colder, and wife v. Bull, 3 Dallas, 
      386. Fletcher v. Peck, 6 Cranch, 135. Wynehamer v. People, 3 Kern. 378. Burch v. Newbury, 10 N. Y. Rep. 374.)
    Test the act by the constitutional restrictions and limitations upon legislative power, and there can be no doubt of its invalidity. (Const. art. 1, § 6. Taylor V. Porter, 4 Hill, 145. Powers v. Bergen, 2 Seld. 358. Wynehamer v. People, 3 Kern. 378. Westervelt v. Gregg, 12 N. Y. Rep. 202. People v. Haws, 37 Barb. 440.)
    (c.) The judiciary has repeatedly protected the defendants from the unjust oppression and unconstitutional acts of the legislature. (Green v. Mayor, 5 Abb. 503. Van Valkenburgh v. Mayor, opinion, Clerke, J. People v. Haws, 37 Barb. 540.) There is no difference or distinction between these cases and the one now under consideration, except that under the act in question the interference with the private property of the defendants is more direct, and the liability imposed is more unjust and oppressive, m
   By the Court,

Monell, J.

An action does not lie at common law against a municipal corporation, to recover for injuries to person or property caused by a mob. This was conceded by counsel, and is well settled.

The legislature of this state, in 1855, (Sess. L. 1855, p. 800, ch. 428,) enacted that, “ Whenever any building or other real or personal property shall be destroyed or injured, in consequence of any mob or riot, the city or county in which such property was situated shall be liable to an action by or in behalf of the party whose property was thus destroyed or injured, for the damages sustained by reason thereof.”

The act provides that actions may be brought and conducted in the same manner that other actions may be prosecuted by law, and directs that, “ Whenever any final judgment shall be recovered against any such city or county, in any such action, the treasurer of such city or county shall, upon the production and filing in his office a certified copy of the judgment roll, pay the amount of such judgment to the party or parties entitled thereto, and charge the amount thus paid to said city or county.”

The complaint alleges the unlawful assemblage, on the 14th day of July, 1863, of a mob of disorderly and riotous persons, and the destruction of the plaintiff’s property by the mob; and contains a statement of facts sufficient to constitute a cause of action against the defendants, if the act referred to can be sustained as a constitutional enactment.

The demurrer was sustained at the special term upon two grounds—-first, that the act is in conflict with the constitution of this state, which declares that no person shall be deprived of life, liberty, or property, without due process of law ; and, second, that it impairs the obligation of a contract within the prohibition of the federal constitution.

I will first consider the provision in our state constitution.

The liability created by the act in question is in derogation of the common law, and was involuntarily imposed upon the defendants. The state, in the exercise of its sovereign power, holds the city responsible, without its consent, and without previous process of law, for the consequences of acts not committed by them, or by their authority or permission, but over which they could exercise no control, and which they had not the physical means to avert.

The decision at special term rested upon the ground that this legislative imposition of liability upon the city, by its consequences of a judgment for damages sustained by a citizen to his property, and the duty enjoined upon the treasurer to pay, does in effect and in fact deprive the defendants of their property, without due process of law, and is within the constitutional prohibition. Process of law does not mean legislative enactment, but condemnation by judicial decree ; and the legislature cannot usurp the right and the power of the courts to determine every question concerning life, liberty, or property.

It is a principle, fundamental with our government, that the citizen shall be protected in the enjoyment of the blessings of life, liberty, and property. Every man in surrendering his personal independence'to the state sovereignty by yielding his support to the government, and by his obedience to its laws, has the right to expect reciprocal protection.

Hence, since we ceased to be colonies of Great Britain, it has always been a provision of the organic law of the state that none of its members shall be disfranchised, or deprived of any of his rights or privileges, unless by the law of the land or the judgment of his peers.

If the consequences of a judgment recovered under the act in question, were to deprive the corporation of the city of New York of any of its “property," as a private body, or artificial person, or to subject any of its property to the lien of such judgment, or to render it liable to be sold, then the act, in my opinion, would be clearly unconstitutional and void.

No property is taken by the terms of the act. The taking, if any there be, is only some compulsion to pay upon an involuntary liability. Money being property, the forced duty to pay money, as effectually deprives the corporation of its property, as if its real estate, or rents, or franchises were in terms to be seized.

The corporation of the city of -New York, represented by the mayor, aldermen, and commonalty, is the owner of both real and personal property. This property may ordinarily, by. process of law, be subjected to the payment of any debt which the corporation, as an artificial person, may lawfully contract. In this respect a municipal corporation is regarded as a natural person, capable of making contracts, of sueing and being sued, and may be compelled, in like manner, to discharge its obligations.

If, therefore, an execution could be issued upon a judgment recovered under the riot act, and levied upon any of the property” of the corporation, which it has obtained under its charters, or by subsequent purchase, and be sold in satisfaction of the judgment; or, if the city is compelled to pay its money to discharge these claims, then I am of opinion that the act would be exposed to the constitutional objection.

But the terms of the act forbid any such conclusion.

Without such a statute, a sufferer by a riot is remediless. The statute is therefore highly remedial; should be liberally construed, and must be taken entire. A part cannot be enjoyed and the residue rejected.

The exigencies which originated the act in question, were the not unfrequent unlawful assemblages'of disorderly persons, suddenly and unexpectedly overpowering the ordinary constituted authorities, and in defiance of law, wantonly destroying-life and property. During such periods, the citizen was powerless to sheild himself, and looked in vain for help to the protecting arm of the law. His property was seized and swept to destruction, and his life imperilled or lost.

As under our free institutions, private interest must yield to the public good, so sometimes, in the due dispensation and distribution of justice, private wrongs, which the government was powerless to avert, may be redressed by removing the burden from the individual, and placing it upon the whole community or some large portion of it, such as might be culpable in not providing means to resist the assault, or most interested in defeating similar ones.

It seems to me that the legislature was influenced by these considerations in passing the act before us. They recognized the right of the citizen to demand of the people indemnity, where they had failed to shield from injury; and that the. legislature, in the exercise of its power to levy taxes, designed that the people of the county or city whose authorities had failed to provide means of protection, should assume the burden of .indemnity. It was not the intention of. the legislature, by imposing- a liability upon a county or city, to do more than to designate a body politic, representing the inhabitants of a district, who might be proceeded against to obtain redress for losses which it was proper should be borne by them. Except that the people cannot be sued, the liability could as well have been imposed directly upon them, instead of their representatives. Hence the act designates the city or county as the party to be liable. It is in effect a mere mode of assessing the damages occasioned by disorderly and riotous persons unlawfully assembled, with a provision for their payment by the treasurer of the city or county, and enabling the city or county, as a municipal or corporate body representing the people within its limits, to contest the amount of the recovery.

The fire act of 1806, which authorized the mayor to direct the pulling down of buildings to arrest the progress of a fire, (Valentines Laws, 450, § 8,) provided for an assessment of the damages to the owner; and after confirmation of the assessment by the mayor’s court, directs the amount to be paid by the city. The riot act does no more than to require an assessment of damages with a direction to the city treasurer to pay. And it does not follow, that because the city or county is designated by the act as the body to be proceeded against in ascertaining the amount of damages, that their municipal or corporate property is to be taken; or that it was intended that the damages when put into the form of a judgment, should be a lien upon such property. ■ I cannot, therefore, believe that the legislature designed to give any other or greater force or effect to such judgments, than is given in the act itself; or to prescribe or allow any other mode of satisfaction than the means therein pointed out. If it had been the design to create a lien upon the corporate property, or subject it to levy and sale, a direction to the treasurer to pay was wholly unnecessary. Such a lien, and a right to enforce it by sale, would have been incident to the judgment itself.

But the statute which fixes the liability also provides for the satisfaction of the judgment. It directs the treasurer to pay and to charge the amount to the city or county made liable.

As I have said, the plaintiff has no right of action and no remedy, except under the statute, (Almy v. Harris, 5 John. 175,) and if the statute does not furnish a complete remedy, he is without any.

In Calking v. Baldwin, (4 Wend. 667,) an act of the legislature authorized B. to erect a dam across the Seneca river, and empowered any three judges of the common pleas, to assess the damages of the owners of lands, which sum so assessed should be taken as a full compensation for such damages. Marcy, J. says : “ The legislature have prescribed the mode in which the damages shall be ascertained, and in that mode only can they properly seek compensation.”

So, under the gaming act, which gave an action of “ debt,’’ it was held that the statutory remedy must be'pursued in form as well as in substance. (McKeon v. Caherty, 3 Wend. 494.) In that case the statute created a right which did not exist before, and prescribed a remedy.

It is provided by statute, (1 R. S. 315, §§ 13, 25,) that fines imposed by a regimental or battalion court-martial are. to be collected by a warrant issued by the president, and it was held in The People v. Hazard, (4 Hill, 207,) they could be collected in no other way.

The chancellor, in Renwick v. Morris, (7 Hill, 575,) says, where a new right is given, and a specific relief given for the violation of such right, the remedy is confined to that given by statute. So, in Smith v. Lockwood, (13 Barb. 217,) it is said, when a new right or the means of acquiring it, are conferred, and an adequate remedy for its invasion is given by the same statute, parties injured are confined to the statutory redress.

If the statute under consideration provided no specific mode of payment, then, undoubtedly, the ordinary common law-incidents necessary to render the judgment effectual would be inferred, although not mentioned in the statute. And even where the provision in a statute designed to give effect to the power, is in such general terms as to render the design doubtful or uncertain, it should receive a liberal construction towards effectuating the power. Bouton v. City of Brooklyn, (15 Barb. 375;) and Strong, J. in Dudley v. Mayhew, (3 Comst. 15,) says : “ The principle that when a statute confers a right, and prescribes adequate means for protecting it, the proprietor is confined to the statutory remedy, is conformable to the manifest intention of the legislature in such cases, and has therefore been properly settled in the courts of England and in this country.”

That the legislature did not intend to give any other effect to their judgments than is contained in the act, gains additional force from the duty of the court in construing their acts, even in doubtful cases, to presume that the legislature did not intend to take any individual or private property against a constitutional prohibition. (French v. Kirkland, 1 Paige, 117.)

The corporate capacity of “ counties ” is prescribed by statute. (1 R. S. 364.) They are declared to be bodies corporate; they may sue and be sued, and may purchase and hold real and personal property; but their powers as a body politic can only be exercised by the boards of supervisors.

The liability of “ counties,” under the act in question, is the same as that of cities,” and judgments must be satisfied in the same manner. An» execution upon a judgment against a county, or against the supervisors thereof, cannot be issued, nor can the corporate property be sold. (2 R. S. 497, § 107.) So far, therefore, as' regards counties, which are protected from executions, in all cases, the direction to the treasurer to pay was quite unnecessary. In cities, however, which enjoy no such immunity, it was necessary to guard against the disturbance of any corporate rights of property. 4-nd I think the legislature has done so, by providing for payment out of the city treasury (which treasury, under the authority conferred by law, from time to time upon the city, to levy taxes upon the taxable property of the citizens of the city, may be replenished,) and by not providing any other mode of payment,

If I am right in my conclusions that a judgment recovered under the act creates no lien upon property ; that no property of the corporation can be subjected to its payment and that the burden of paying falls upon the tax payers of the city ; then jt follows, I tfiink, that the act is not unconstitutional, unless levying a tax to reimburse the treasury is a taking of property within the meaning of section 6 of article 1 of the constitution.

The power of taxation, both in cities and counties, is conferred by the legislature in either general or special laws.

General laws have been enacted giving authority to boards of supervisors to raise money by tax. (1 R. S. 366, § 4. Laws 1849, ch. 194, § 34.)

In this city no general authority exists. But the -legislature may, from time to time, authorize the levying of a tax to reimburse the treasury, or to provide for the payment of the expenses and liabilities of the city. An act empowering the city to raise money by tax, is annually passed by the legislature.

The power of the legislature to impose the burden of taxation upon the citizens cannot, I think, at this day be questioned. It is one of the duties which the citizen owes to the state, to contribute to its support; and the state, in virtue of the right of eminent domain, may compel' the contribution. The compensation which the citizen receives, or is supposed to receive, is in the protection of the government, the security of life and liberty, and the enjoyment of property.

All right of property as regards its mode of enjoyment, burdens, alienations, transmission, or sacrifice, for the public good, depend upon positive municipal regulations of the sovereign power. The constitution only intended to forbid the seizure and appropriation of private property for public uses, when it would thereby remain the private property of the community, as a body politic or corporate, although enjoyed by the public. , Taxation is not so much the exercise of the right of eminent domain as a sacrifice to public wants or necessities. It is not the resumption of property by the state, compensating the owner for its loss, but the appropriating it at once to some public purpose. The state, or its officers, are only invested momentarily or temporarily, in order to discharge obligations incurred for a public necessity. The public necessity, to which the payment of a tax is a sacrifice, must be determined alone by the legislature ; the elements of judgment, as to its existence or quantum, are so minute and various, that a judicial body cannot take cognizance of them.

The limitation of the region of taxation to raise funds for a particular purpose does not affect the constitutional right any more than the regulation of the persons or property to be taxed. Either the legislature is invested with sovereign, unlimited, unquestionable power, or every individual, and every kind of property, is to be taxed alike, or according to the benefits to be received ; and courts cannot determine whether a tax is unconstitutional by reason of the persons to be taxed or exempted.

The power to tax for local as well as governmental purposes, has always been upheld by the courts as being necessary to the due administration of the government, and as imposing no new or improper burden upon the citizen.

In Thomas v. Leland, (24 Wend. 65,) the question arosunder an act of the legislature, levying a tax upon property in Utica, to pay the cost of a change of terminus of the Chenango canal. Neither the city of Utica, nor the inhabitants thereof, were liable for such costs. The court held the act to be constitutional. There the act subjected the taxable property of U tica to the payment of a debt, and shifted the burden from individuals to the tax payers.

In Morris v. The People, (3 Denio, 381,) the act sought to be invalidated, declared that the salaries of the judges of the court of sessions were county charges, and directed the supervisors to pay ; and it was held, that although the appointment of Judge Lynch, one of the session judges, was illegal, the act directing the payment of his salary was valid. Neither the city nor county could have been made liable except under the act.

In the People v. Mayor, &c. of Brooklyn, (4 Comst. 419,) the whole subject of taxation for local purposes received the careful consideration of the court. Judge Buggies, in that case, says (p. 422 :) The right of taxation, and the right of eminent domain, rest substantially on the same foundation. Compensation is made when private property is taken in either way. Money is property. Taxation takes it for public use, and the tax payer receives, or is supposed to receive, his just compensation in the protection which the government affords to his life, liberty, and property, and the increase of the value of his possessions, by the use to which the government applies the money raised by the tax.” The assessment, in that case, was for a local improvement, the benefits of which were enjoyed by a few only of the citizens of Brooklyn. But the court upheld the assessment, on the ground that an assessment, being a tax, it was not in conflict with the constitution to confine the tax to any prescribed limits.

In Bank of Rome v. Village of Rome, (18 N. Y. Rep. 38,) an act was sustained which authorized the defendants to subscribe to the capital stock of a railroad company, and to issue their corporate bonds therefor.

In Brewster v. the City of Syracuse, (19 N. Y. Rep. 116,) J. and W. Ley had constructed a sewer under a contract with the city of Syracuse, and had been paid in full. Afterwards, an act was passed directing the common council of Syracuse to assess and collect $600, and to pay it to the Leys, as an additional compensation. The Leys, before the act, had no claim whatever against the city, and the charter prohibited the city from paying any thing above the contract price. But the court say, “ The expense was imposed on that part of the citizens interested in the improvements by virtue of the discretionary power of the legislature to impose the public burdens on those who in its judgment ought to bear them.”

I will refer on this point to but one case more, that of The town of Guilford v. The Supervisors of Chenango Co. (13 N. Y. Rep. 143.) In that case it was attempted to restrain the supervisors from levying and collecting from the taxable property of the citizens of a town, a sum awarded to Cornell & Clark, under an act of the legislature, and for which, except under, the act, the town was in no way liable. Judge Denio there says, (p. 149 :) “ The legislature is not confined in its appropriation of the public moneys, or of the sums to be raised by taxation in favor of individuals, to cases in which a legal demand exists against the state. It can thus recognize claims founded in equity and justice, in the largest sense of these terms, or in gratitude or charity. Independently of express constitutional restrictions, it can make appropriations of money whenever the public well-being requires or will be promoted by it; and it is the judge of what is for the public good. It can, moreover, under the power to levy taxes, apportion the public burdens among all the tax-paying citizens of the state, or among those of a particular section or political division. It is well settled that the authority to raise money by the exercise of the taxing power is not in conflict with the constitutional provisions protecting private property from seizure.”

The only conceivable difference between the cases to which I have referred and the question I am considering, is, that the riot act does not authorize the levying of a tax to place funds in the treasury to pay the judgments. That difference may affect the efficiency of the law ; may deprive the plaintiff of the means of obtaining satisfaction of his judgment until further legislation is had, but it does not render the law invalid. It rather sustains it in the view taken by the learned justice below.

My conclusion upon this branch of the case is, that the act does not allow judgments recovered under it, to be collected in any other manner -than is ■ prescribed by the act; that such judgments have not the attributes of ordinary judgments, and that none of the corporate property of the city can be seized or made liable for their payment. The burden of paying them falls upon the tax-payers of the city and not upon the city. The act, therefore, does not conflict with any provisions of the constitution of this state.

The second ground is, that the effect of the act is to impair the obligation of a contract.

I agree with the learned judge, at special term, that the charter of the city is so far a contract between the state and the corporation, that its right to hold and enjoy its property cannot be impaired or destroyed by subsequent legislation.

The constitution does not exempt charters from legislative control or interference whenever, upon principles of law, such control or interference would be valid. Their recognition does not impair the power to alter, amend, or modify, so long as no grant of property, or franchises, coupled with a right of property, is taken from them. Nor does the state lose the right of making laws concerning .chartered corporations, so long as they remain publici juris. The grant is therefore subject to remedial legislation, and amenable to general laws. And as. an illustration of this principle, I may observe that the charter of the city of New York has repeatedly been subjected to change, both by the colonial government, and by our state legislature.

I have endeavored to show that the act before us does not deprive the city of any of its property, and that the power to tax is a constitutional power. If I have succeeded in establishing those propositions, then- it necessarily follows, that no vested right of the city has been disturbed, nor has the obligation of any contract been impaired.

In the Charles River Bridge case, (11 Peters, 420,) the right of the legislature to interfere and take away a vested right, was clearly and distinctly recognized and decided. There the emoluments of a toll-bridge had been enjoyed, under a special charter, for more than forty years ; yet the legislature chartered a rival company, with corporate rights and powers injurious to those of the old company. The right was admitted to be vested in the old company, but it was not doubted that the legislature could take it away.

The Dartmouth College case, (4 Wheat. 519) is relied on as an authority that the legislature cannot interfere with vested rights. But it will be seen, that the distinction between public and private corporations is marked with emphasis by the eminent judges who delivered opinions in that case. The extent of that decision is, that an eleemosynary corporation, founded by private contributions, for the distribution of a general charity, is not an instrument of government, whose officers are public officers, but a private corporation, whose charter is a contract between the donors, trustees, and the government, founded on the consideration of public benefit to be derived from the corporation, which cannot be altered, amended, or modified without the consent of the corporation.

The corporation of the city of New York is a public corporation, (2 Kent’s Com. 305 ; People v. Morris, 13 Wend. 325 ; Purdy v. People, 4 Hill, 384,) deriving its corporate rights, first from the crown of Great Britain, and since, from the recognition of those rights by our state constitutions. Yet no one, I think, can doubt that the legislature can at pleasure change or suspend the political or governmental powers of the city (for these are not vested rights as against the state, and may therefore he abrogated by the legislature), and may alter or amend any of the provisions of its charter, so long as there is no deprivation of or interference with her vested rights of property.

This power of the legislature over charters was recently fully discussed and considered in the Court of Appeals, in the Chenango Bridge Co. v. the Binghamton Bridge Co., (26 How. Pr. 124, 297,) where the power is fully recognized.

The English statutes (13 Ed. I, and 27 and 28 Eliz.) giving remedies for injuries caused by a riot, to which we were referred, furnish no aid in determining the constitutional question arising under ours. Parliament is the highest law-making pdwer of • Great Britain, and it can conflict with nothing. Our legislature is limited and circumscribed by a higher law, which they, as well as the courts, must obey.

The question before us was directly involved in the case of Abbott v. Supervisors of Richmond Co., (11 Abbott, 207.) The learned judge who decided that case, and whose opinions are always entitled to great weight, sustained the act, in a well reasoned opinion, which it seems to me is supported in principle and by authority. Especially by the terse and direct annunciation of Mr. Senator Verplanck, 1840, in Stone v. the Mayor, &c. (25 Wend. 181,) who says : The legislature might with perfect justice, if sound policy was thought to require it, make our towns or counties, severally responsible for damages hereafter arising from robbery within them, or from public tumults, on the principle of the English riot act.”

I have thus given this question the careful examination which its importance deserves. I have cast aside all those presumptions which go to sustain an act until its invalidity plainly appears ; and I have looked attentively into every part of it, tracing its probable and. even possible effects upon the city, with a jealous regard for its corporate rights, to see if I could find any power improperly exercised by the legislature, and I have found none,

We have nothing to do with either the wisdom, policy, or justice of the law, Those questions were with the legislature, not with us.

My conclusion is, that the act does not conflict with any provision in the state or federal constitutions, and is a valid law.

The judgment of the special term should be reversed, with costs, and leave given to the defendants to withdraw the demurrer, and to answer on payment of costs,

Garvin, J. concurred,

Barbour, J.

(dissenting.) The complaint in this action • alleged that, on the 14th of July last, the plaintiff owned and possessed certain articles of wearing apparel, a sum of money, watch and other chattels, carried on his person, of a certain value, in the aggregate, ($127;) that a mob of rioters then collected in this city, for the space of four days terrified, overpowered, and killed many citizens, openly defied, terrified and overpowered all the public authorities of the city, and destroyed much property ; that on the last named day, while such rioters were lawlessly engaged in pillaging and destroying by fire the preperty in a certain store, and threatening to destroy in like manner the next adjoining premises, which was the house where the plaintiff then resided, he, in the act of passing through such rioters, in order to save his property in such house, was violently assaulted, knocked down, and trampled upon by them, and deprived of all such property, the same “ being carried away from his possession by the said rioters, and in consequence of said mob and riot, being irrecoverably' destroyed, and lost to the plaintiff.” The plaintiff further averred in his complaint, that there was no negligence or want of care on his part; that, on the 31st of July, he presented his claim for damages to the city comptroller, payment whereof was refused ; and he demanded therein judgment for the value of the property, with interest. To that complaint the defendants demurred, upon the ground that the same did not state facts sufficient to constitute a cause of action; the court, at special term, sustained the demurrer, and the case now comes before us upon appeal from the judgment entered thereon.

It is conceded by the learned counsel for the plaintiff, and, indeed, there can be no doubt he is correct, that the latter is not entitled, under the rules of the common law, and without the aid of some statutory provision, to recover in this action against the defendants, the corporation of the city of New York ; but he bases his right to a recovery solely upon an act of the legislature of this state, passed in 1855, (3 R. S. 5th ed. 874,) providing for compensation to parties having property destroyed in consequence of mobs or riots.

The first section of that act declares, that “ whenever any building, or other real or personal property shall be destroyed or injured in consequence of any mob or riot, the city or county in which such property was situated shall be liable to an action by, or in behalf of, the party whose property was thus destroyed or injured, for the damages sustained by reason thereof.” The second section authorizes such actions to be brought and conducted, and the judgments therein appealed from, in the same manner as in other actions; and directs that whenever any final judgment shall be recovered against such city or county, the treasurer of said city or county shall pay the amount of the same to the party entitled thereto, whenever such party shall present to him a certified copy of the judgment roll, and shall charge tho amount thus paid, to such city or county. It is unnecessary to state here any other provisions of such act.

The objections raised by the defendants’ counsel, that the complaint, taken as an entirety, does not show that the property in question was injured or destroyed by the mob, cannot be sustained. The allegation that the property was carried away from the plaintiff’s possession is in no degree inconsistent with the positive averment that it was irrecoverably destroyed. Indeed, the complaint fully and properly sets forth all the facts necessary to constitute a cause of action, if any action whatever can be sustained against these defendants, under and by virtue of the act.

But there are other questions in the case, which, in view of the legal principles involved, and the magnitude of the interests to be adjudicated in this, and sixteen hundred similar cases, already instituted against the city, are of such importance as to demand careful examination and serious consideration.

As the ultimate effect and operation of the statute in question, if the same is valid, must be to compel all the citizens of the city of New York, in a case like this, to pay for such property as has been destroyed or injured by a mob, whether such citizens, or a considerable portion, or, even any of them, were or were not particeps criminis therein, or connected therewith, it can hardly be doubted that such act is not only penal in its character, but, in so far, at least, as concerns the innocent who are thus compelled to answer with their property for the acts and misconduct of others, is in derogation of common right; that right which every man has to keep and enjoy his own property, unless the same shall be taken from him by legal authority.

The rule is well settled that all penal statutes, and all statutes affecting property contrary to the principles of the common law, must not only be expressed in clear and unambiguous language, but must also be strictly pursued in relation to all matters impairing the rights of the person against whom they are designed to operate. (Dwarris on Stat. 749.) It is essential, therefore, that the language of such an act be sufficiently definite and certain, to enable the court to ascertain and determine with precision the person intended to be charged thereby.

The statute upon which this action is founded is, I think, neither wholly penal, nor entirely remedial; but it is to be considered as penal so far as it is calculated to effect the rights of. the defendants in the actions therein contemplated, and remedial as to the parties whose property has been destroyed or injured.

In Ratcliffe v. Eden, (Cowp. 485,) it was decided that the statute of 1 George I, St. 2, Ch. 5, which is similar in principle to the act under consideration, was remedial. But, in Reid v. Clarke, (7 T. R. 497,) Lord Kenyon held that it was a penal law. In Hyde v. Cogan, (Doug. 699,) however, Buller, J. in discussing the question as to what property was covered by the act, said : “The statute is so framed that the words might possiby admit of two constructions, and therefore it is material to consider whether it is penal or remedial; because there is a well known difference in the rule of construction as applied to laws of the one sort and of the other. Where they are remedial, the interpretation is to be liberal, so as best to apply to the end. But a law may, certainly, be penal in one part, and remedial in another; and that is the case here.” So, too, in Wilmot v. Horton, (cited in a note to Hyde v. Cogan,) Lord Loughborough, in speaking of the same act, said : “ This statute, though penal in a great part of its provisions, and though, perhaps, there is something of a penal nature in transferring the action from the party committing the felony to the hundred, yet, with respect to the party injured, it must be considered as remedial.” (See also Fish v. Fisher, 2 John. Cas. 89 ; Smith v. Moffat, 1 Barb. 65 ; Millered v. Lake Ont. R. R. Co., 9 Haw. Pr. 86; Sickles v. Sharp, 13 John. 497.)

Holding in view these rules, the first question that rises to the mind is, whether the act, definitely, and with, at least, ordinary certainty, designates the person against whom it is designed to operate ; for if not, it is void for that reason.

The statute in question, it will be remarked, declares that where property shall be destroyed or injured by a mob, &c., the city or county—that is, the one or the other of them—shall be liable for the damage. The legislature have thus, very clearly, expressed their intention that either the one or the other of those two parties shall be liable to pay the damage. This, it seems to me, is insufficient to charge either the city or the county ; for the act fails to designate, in terms, which one of the two is thus to be liable, or to declare that cities shall be held in a certain specified class of cases, and counties in another. Standing by itself, it is void for uncertainty in regard to a most material matter.

But, although a strict construction must be given to the act, according to its letter, for the security of the person to whose prejudice the same is designed to operate, it is, nevertheless, our duty so to construe it as to give effect, if possible, to the intention of the legislature, as embodied in its provisions, (McCluskey v. Cromwell, 1 Kern. 593 ; Waller v. Harris, 20 Wend. 561;) and I know of no reason why the court may not, in examining the question of legislative intention, take into consideration such extraneous facts, within their judicial cognizance, as tend to elucidate such intention.

What, then, was the design of the legislature touching the parties to be charged as defendants, as derived from such facts and the statute itself?

The act is general in its provisions, and was, undoubtedly, intended to operate in the same manner in and upon every city and every county of the state. All the cities in the state, other than the city of Hew York, are included within the bounds and form a part, and only a part, of the counties in which they are, respectively, situated ; but. the boundaries of the- city and of the county of Hew York are precisely the same. The most natural and obvious construction of the act, so far as relates to counties and cities other than Hew York, is, that the same was designed to compel those cities to pay such damages as should be occasioned by the destruction or injury of property by mobs within their respective limits ; while the county, as such, was to be held for such damages only as should be caused within such county, but beyond the bounds of its cities. Unless such was the intention, the provision, in the alternative, that the county or the city might be proceeded agaiust, would be senseless, as well as unjust and unreasonable. It cannot reasonably be imagined, it appears to me, that the legislature designed to impose upon the county, absolutely, and by force of the act itself, the payment of all such damages as should occur within its limits and beyond the bounds of a city, and at the same time, to leave it entirely to the whim or caprice of the party injured to determine whether damages occasioned by a mob in a city should be paid for by such city alone, or by the county at large. There is no supposable reason for giving such optional power to the person injured ; inasmuch as his remedy would be perfect upon a judgment against either.

Is it possible to imagine that the legislators who framed this act, considered themselves less competent to determine whether the city or the county ought to bear the loss, than the person who should have sustained the injury ; and that they designed to leave it optional with such party to charge his damages upon the city or the county, as he might himself elect P The proposition appears to me to be absurd.

It has been said, however, that inasmuch as the boundaries of the city and county of New York are alike, and the citizens of the one are, necessarily, the inhabitants of the other, it is immaterial whether an action is brought against the city or the county, and therefore a different rule of construction should prevail here from that which is applicable to cities and counties in the interior. But I have been unable to discover any distinction, in this regard between the city of New York, and the other cities of the state. The city of New York, precisely like the other cities, as I understand the act, was to be held responsible for such damages as should be occasioned by mobs within its precincts ; and although it follows as a necessary conclusion, that no recovery can, in any case, be had against the county of New York, by virtue of the statute, because the boundaries of such county and of .the city of New York are precisely the same, yet there is no inconsistency whatever in this. The act does not operate upon the county of New York, simply for the reason that there is nothing to operate upon ; no locus in quo ; because it has no territory outside the limits of a city. By its terms, the act is to operate upon every city and every county, in like manner as to each of the class. Besides ; although the boundaries of the city and the county of New York are alike, and their inhabitants are the same, yet the municipal corporation, and the board of supervisors of the county, are not only two distinct persons in the law, but judgments against them, respectively, must be satisfied, eventually, out of property belonging to quite different classes of persons. If, for instance, the' judgments which may be recovered under the act are to be satisfied as therein contemplated, by payments out of the city or the county treasury, as the case may be, then a judgment against the county must be paid out of moneys in the county treasurer’s hands, that have been raised by taxes assessed upon the property of that comparatively small portion of the population known as tax-payers ; while on the other hand, the moneys used in payment of alike judgment against the mayor, aldermen and commonalty, must be taken by the city treasurer out of funds which have been derived in great part, if not entirely, from license fees, rents of wharves, markets, and other property, ferry franchises, &c. and which equitably belong to all of the eight hundred thousand citizens of New York. Or, if the plaintiffs in such judgments shall resort to their legal remedies in collecting the same, independent of the statute in question, a judgment against the city must be satisfied by a sheriff’s sale of a portion of its immense property, in which, as we have seen, each and every citizen has an interest; while payment of a judgment against the county can be enforced, after its small property shall have been exhausted by sales on execution, only by mandamus upon the county treasurer ; or in case he shall have no funds in his hands, then, by a mandamus upon the board of supervisors, to compel them to raise the necessary amount by a tax upon the property of that class only of our citizens who pay taxes.

Again : If the party whose property has been destroyed by a mob, may, at his own option, bring a suit to recover for his damages under the statute against either the city or county, as he shall elect, I see no reason why he may not, if he shall see fit to do so, institute two separate actions, against the city and the county, respectively, and proceed with them, pari passu, to a final judgment in each ; as they are, severally, distinct persons in the law, and neither has any legal concern or interest in actions against the other, and, therefore, could not plead such other suit in bar to further proceedings against itself. Nothing short of a satisfaction of the judgment in the one case, I think, would be a bar to proceedings in the other; and it is unnecessary to pursue the inquiry to see whether even that would be. Surely the legislature could not have designed this. But, as I understand the act, when thus examined in the light of extrinsic facts, it was their intention to subject the city of New York to a liability precisely like those which were imposed upon the other cities of the state, and to compel it to pay such damages as should be occasioned by mobs within its precincts.

I am, therefore, of opinion that the act, irrespective of the further question I am about to consider, is valid, and may be enforced, nothwithstanding the uncertainty in its terms regarding the parties to be charged.

I pass next to the examination of the question, discussed upon the hearing, as to the constitutionality of the act.

Many statutes have been enacted by the English Parliament, at various times, running through a period of several hundred years, such as the statute of Winton, (13 Edw. 1,) the statute of Elizabeth, &c. providing for recoveries in actions brought against the hundred by parties robbed therein, or against cities and towns by persons whose property has been destroyed within the bounds of such municipalities by mobs or riotous assemblages; all of which statutes were, undoubtedly, based upon the theory that it was the duty of such hundreds, cities, &c. (which were clothed with power for that purpose,) to preserve the peace and protect the property of all persons within their limits; that such persons were rightfully entitled to such protection, or to compensation in case of loss; and that a liability imposed by law upon such municipalities or political organizations, in case a robbery was committed or a riot should be permitted to occur, and property to be destroyed or injured, would not only tend to incite them, to greater vigilance. but that the compulsory' payment of the losses so occasioned would be a proper and just penalty for the negligence of which they had been presumptively guilty, (see Ratcliffe v. Eden, Cowp. 485 ; opinion of Lord Mansfield ;) and such, it seems to me, must have been the theory upon which the act of our state legislature was founded. I can imagine no other that could justify the infliction of what is in effect a fine or penalty, upon a municipal corporation, because of damages occasioned by a mob.

But whether the legislature, in passing the act in question, were or were not governed by the reasons which induced the enactment of the English statutes, as above suggested, it is to be remembered that, while parliament is omnipotent in regard to its legislation, ours is circumscribed and controlled by the constitution. By an act of parliament alone, and without the intervention of courts of law, a man may be deprived of his property, and even of his life. But the constitution of this state declares that no person shall be deprived of life, liberty or property, without due process of law, (Const. of N. Y. act 1, § 6 ;) and that of the United States prohibits the passage of any law by a state impairing the obligation of contracts. (Const. U. S. art. 1, § 10.)

The mayor, aldermen and commonalty of the city of New York, the defendants in this action, are a corporation, and, therefore, a person within the meaning of the constitution, possessing and owning, under and by virtue of various grants of lands, rights, and franchises, which are contained in their ancient charters, a large amount of property, real and personal, consisting of such lands, rents and franchises and' the proceeds thereof, and are 'in the annual receipt of large sums of money derived from such franchises, and from the sales and rents of their lands ; all of which property has heretofore been, and now is, held and possessed by such corporation, under and by virtue of a further grant or covenant, also contained in those charters in express terms, that the grantees should have and enjoy the property granted, with the profits thereof, forever, without hindrance or impediment from the grantor. (Dongan’s Charter, §§ 3, 4, 6. Montgomery Charter, §§ 1, 36 to 40.)

This property of the corporation is as sacred, and as free from legislative control, as that of any individual; although its municipal or governmental powers may be, in most respects, restricted or enlarged by the legislature. For, first, those charters constitute a valid contract between the crown of Great Britain and the corporation of New York, which is binding upon their successor, the state of New York, (see Charles River Bridge Case, 11 Peters, 572,) on the one part, and the city corporation on the other. The latter, therefore, cannot be disturbed or molested in their possession and enjoyment of the property covered by the grants, by, under, or by virtue of any act of the state authorities, and against the will of such grantees, without a direct violation of the provision of the constitution of the United States above referred to. Secondly, even were this otherwise, it is sufficient that the constitution of this state, in the section above mentioned, prohibits such legislation.

Chancellor Kent, in his learned and well considered Note 3, on the charters of the city of New York, (City Charters and Kents Notes, p. 202,) says: The grant to the corporation was doubtless a valid grant; and the rights of property thereby acquired could never thereafter have been lawfully divested, without the consent and act of the corporation, or due process of law, It may not be amiss to state here, once for all, that it is an acknowledged and settled principle, that no vested right of property, whether it belongs to individuals, or be in the shape of a corporate franchise, can ever be lawfully taken away, without some -default or forfeiture, to be ascertained upon a fair trial, and pronounced by judicial decree.” * * * Corporate franchises, in this country, rest on a basis, which ought to be, at least, as solid as Magna Charta, for they are founded on grants which are contracts ; and no state/ says the constitution of the United States, 'can pass any law impairing the obligation of contracts.’ ” (See also Fletcher v. Peck, 6 Cranch, 87 ; Charles River Bridge case, 11 Peters, 592 ; Webb’s case, 8 Co. 92 ; Co. Lift. 2 Inst. 45, 50.)

In Taylor v. Porter, 4 Hill, 140;) Justice Bronson, in discussing the powers of the legislature upon-a similar question, uses this language: “ It is readily admitted that the two houses, subject only to the qualified negative of the governor, possess all the legislative power of the state; but the question immediately presents itself, what is that legislative power, and how far does it extend ? Does it reach the life, liberty, or property of a citizen who is not charged with a transgression of the lazos, and when the sacrifice is not demanded by a just regard for the public welfare ?” * * * The security of life, liberty and property lies at the foundation of the social compact; and to say that this grant of legislative power includes the right to attack private property, is equivalent to saying that the people have delegated to their servants the power of defeating one of the great ends for which the government was established).” * * * “ The legislative power of this state does not reach to such an unwarrantable extent. Neither life, liberty nor property, except when forfeited by crime, or when the latter is taken for public use, falls within the scope of the power.” (See also Wilkinson v. Leland, 2 Peters, 657 ; 2 Kent’s Com, 13, 340, and cases cited ; Matter of Albany street, 11 Wend. 149 ; Bloodgood v. The Mohawk & Hudson River R. R. Co., 18 id. 59 ; Matter of John and Cherry streets, 19 id. 659 ; Varick v. Smith, 5 Paige, 137 ; People ex rel. Fountain v. Supervisors of Westchester, 4 Barb. 64 ; Powers v. Bergen, 2 Seld. 366 ; Wynehamer v. The People, 3 Kern. 392; The People ex rel. Baldwin v. Haws, 37 Barb. 440 ; Dartmouth College case, 4 Wheat. 519.)

The words, “ due process of law,” used in the United States constitution, and by the learned chancellor in the opinion above quoted, as well as in the state constitution, do not mean such proceedings in court as are contemplated by the statute in this case ; proceedings which are to be had for the purpose of determining, merely, whether the plaintiff’s property has been destroyed or injured by a mob, and the extent of such injury; but they are applicable only to actions wherein the court is to detrmine, judicially, whether the party has, by his own acts, placed himself in such a condition that he may lawfully be deprived of his property by the judgment of such tribunal, or in satisfaction of such judgment. It was the object and design of the constitution, in this regard, to prohibit the legislature from passing such laws as should, by their own operation or authority, and without the act of the owner himself, divest him of his property. Ho person’s estate can thus be forfeited and taken from him without a violation of the constitution ; and a corporation like that of the city of Hew York, is a person, within the meaning of the constitutional prohibition, as well as its cestuis que trust, the citizens themselves, who it may be said, en passant, are, each, equitably interested in the property and estate which is legally vested in the corporation.

There is no pretense in this case, that the corporation of the city of Hew York, or any of its officers, agents, or servants, as such, aided or abetted the rioters, in the destruction of the property which is the subject matter of this action; or that any of them contributed in the slightest degree to the destruction of property set forth in the complaint; nor, indeed, is it probable, that any considerable proportion of the eight hundred thousand inhabitants of the city were, themselves, engaged in the riot. Of course, no recovery could have been had in an action of this character against the corporation, except for the act in question ; for no claim or right of action would have existed. It is by the statute, and its operation, therefore, that these defendants are to be deprived- of their property, if the plaintiff succeeds, and not by due process of law. The proceedings in court, contemplated by the act, are merely a part of the machinery to be used in perpetrating the wrong. The legislature have, themselves, assumed the powers and functions of the judiciary, and by the act, have -undertaken to adjudicate and judicially determine the rights of the parties, plaintiff and defendants in the actions to be brought; leaving to the courts the duty, only, of ascertaining whether the property of such plaintiff has been destroyed of injured by a mob, and the amount of the damage sustained. That cannot legally be done. The legislature cannot thus do an act, indirectly, which the constitution prohibits them from doing directly. I can perceive no difference, in legal principle, between an act of this character, so far as the same is intended to affect the city of New York, and a statute which should, in like manner, authorize the forfeiture of one man’s property because of a crime perpetrated by another. Indeed, if the property of the corporation of New York may thus be taken in satisfaction of damages caused by mobs, I know no reason why the city may not, as such, be compelled by the legislature to bear all losses occasioned by fire, or robbery, within its limits ) or even to answer for the debts of its ■> merchants ; which, in view of the constitutional prohibition, would be monstrous.

The only question remaining for consideration is this ; Will the statute upon which this action is founded, if carried into effect through and by means of a judgment against the defend- . ants here, operate to deprive them of their property ?

When a statute is expressed in clear and unambiguous language, it needs no interpretation beyond what is to be found in its letter. The legislature should be intended to mean what they have plainly expressed ; and, consequently, there is no room left for construction. (Fisher v. Bright, 2 Cranch, 358. Case v. Wildridge, 4 Ind. R. 51. Jackson v. Lewis, 17 John. 475. Waterford & Whitehall Turn. Co. v. The People, 9 Barb. 161. Vattel, b. 2, ch. 7, § 263. McCluskey v. Cromwell, 11 N. Y. Rep. 593. Waller v. Harris, 20 Wend. 555.) But as all statutes are to be construed according to the intention of the legislature, (see Story on Const. § 392; Smith on Stats. § 478 ; Purdy v. The People, 4 Hill, 384 ; Waller v. Harris, supra, and authorities cited below,) in cases where the design of the law makers is not-clearly or fully expressed in the act itself, their intention is to be gathered from surrounding circumstances. It is, then, the duty of the court to make the inquiries, said by Lord Coke to have been held necessary, in such cases, "by the barons of the exchequer, in their resolution in Heydon’s case, (3 Rep. 7,) viz: “ That for the sure and true interpretation of all statutes in general, be they penal or beneficial, restrictive or enlarging of the common law, four things are to be discussed and considered: 1. What- was the common law before the making of the act ? 2. What was the mischief and defect for which the common law did not provide ? 3. What remedy the parliament (legislature) hath resolved and appointed to cure the disease of the commonwealth ? 4. The true reason of the remedy ? And then, the office of the judges is always to make such construction as shall suppress the mischief, and advance "the remedy. In short, the reason and object of a statute, furnish a clue to its true meaning. (Dwar. on Stat. 696.)

The intention of the law makers, thus ascertained, is to be held and considered as a part and parcel of the act itself; for, in the language first used in Zouch v. Storrell, (Plowd. 366,) and substantially adopted in some of our own decisions, “ a thing which is within the intention of the makers of the statute, is within the statute, though not within the letter.” (See, also, Donaldson v. Wood, 22 Wend. 395 ; Dwar. on Stat. 562 ; Pillow v. Bushnell, 5 Barb. 156 ; People v. Utica Ins. Co. 15 John. 358; Dresser v. Brooks, 3 Barb. 429; Bac. Abr. Stat. J. 5, 10 ; Beaiofage’s case, 10 Co. R. 101.) I may add, we have no right to assume that the legislature designed to violate the constitution, but if .this statute, of itself, or when construed with the aid of surrounding circumstances, in accordance with these rules, leads, necessarily, to the conclusion that they intended to authorize certain acts to be done, and that the doing of such acts will deprive a person of the rights guaranteed to him by the constitution, it is our imperative duty so to adjudicate and determine.

What, then, was the reason which induced the passage of this act by the legislature, and what object did they intended to accomplish ?

Looking back through the legislation- of a thousand years, to the decennaries of Alfred, we find an unbroken series of statutes, in England—that country from which we derive our common law, and the principles of most of our legislative enactments—providing that where a person has been robbed, or his property has been destroyed by a mob, he shall have his action therefor, against the hundred, parish, or city, within which the wrong was done, and recover the amount of his loss. The mischief designed to be prevented or diminished by those statutes is obvious ; and their reason and object are equally apparent. They were intended to make every member of the community responsible'for the conduct of each of the others, so as to excite all, through the strongest motive that influences man, self interest, to greater vigilance in foreseeing, and increased diligence in preventing, the crimes sought to be restrained. They were thus, as Lord Mansfield says in Radcliffe v. Eden, (supra,) made insurers, each for the others, and all for each.

The construction given, in this regard, by the English courts to statutes in pari materia with the act under consideration, may not only well be followed here as a safe precedent, but it is impossible, it seems to me, to imagine that the legislature, in this case, could have been actuated by any different or other reason. The grand object here, as in England, was to compel the whole community or corporate body to pay the loss. It was the intention of the legislature, I think, to substitute an entire community, in a case like this, in the place and stead of the doers of the wrong, and to hold them amenable in an action at law, and upon a judgment to be therein recovered against them, for such damages as have been sustained by the injured party, in like manner, and to the same extent, as such wrongdoers would, themselves, be, were they the parties defendant in an action for damages. In other words, the legislature must have intended that the party injured should have a right to bring his action against the corporation, and prosecute it to a final judgment, according to the course and practice of courts, and collect the same out of the property of the defendants; and, for that reason, such judgment must be satisfied out of the property of the defendants, whether the same shall-be paid by the city treasurer, or not.

This conviction is strengthened, in my mind, by the following consideration : If the legislature did not design that the judgments to be obtained in cases of this character should be satisfied out of the property of the corporation, it was absurd to make it a party defendant; because such corporation would have no interest whatever in defending a suit, or incurring the expenses attending its defense. Nothing less than the promotion of rioting and incendiarism, perpetrated for the purpose of recovering damages in undefended actions, would result from this. Most certainly, the main object of the law would, in that case, be defeated.

I am, also, of opinion that the act authorizes the plaintiff in a judgment of this character, to issue his execution, if he shall so elect, and collect the same out of the property of the defendants.

The act, to be sure, directs the payment of a judgment recovered against the corporation, by the city treasurer, upon the presentation to him of a certified copy of the judgment roll by the plaintiff. But the latter is not bound to present the roll, either within a limited period, or at any time ; nor does the act, expressly, or by implication, prohibit the issuing of an execution upon the judgment. The right given to the plaintiff to claim payment from the city treasurer, even if the act, in this regard, can be construed as granting such right, instead of being merely directory to that officer, which may be a matter of some doubt, is therefore, a cumulative remedy, granted by this act, in addition to those rights, appertaining to and running with all judgments for money, which are conferred by other statutes upon all plaintiffs herein, without any exception.

There is a general rule, it is 'true, that when a right, not before existing, has been granted by statute, and a full remedy has also been given by the same act, the beneficiary has no common law remedy. But that rule, in strictness, applies only to common law remedies. A statutory remedy, conferred by another statute, which covers all persons in like condition with such beneficiary, and which, of itself, is not inconsistent with the specific remedy granted, is a right given to the latter, and may be enforced by him precisely as if it was contained in the same special act; for all statutes in pari materia must be construed together, and read as one act. (Rogers v. Bradshaw, 20 John. 735. McCartee v. Orphan As. Society, 9 Cowen, 437. Rexford v. Knight, 15 Barb. 627.) In this case the remedy granted is, first, a judgment, and secondly, a means of collecting the amount of such judgment. The judgment itself' is as much a portion of the remedy specially granted by the act as is the method of obtaining payment. There is nothing’ in the special act, nor in the surrounding circumstances, tending to show that the legislature designed that the judgments to be obtained in actions of this description should not have all the attributes and powers conferred by another statute upon all judgments for money; and it follows that the moment a judgment is entered, in a case like this, the general provisions of the statutes in relation to all money judgments will be applicable thereto, for the two acts then being in pari materia, must be construed as one statute. It will then bear interest, will be appealable, will constitute a lien upon the real estate of the judgment debtor during the pendency of such appeal and until satisfied, and must be discharged of record in the mode provided by the general statute. Why, then, may not the plaintiff have the execution which is also given by general statute to all creditors in money judgments ?

The silence of the act in relation to an execution, furnishes no evidence of an intention, on the part of the legislature, to deprive the plaintiff in the judgment of the remedy by execution which is given to all judgment creditors of the same class, by other statutes in force when this act was passed. It is equally silent as to executions upon the judgments against the mayor and sheriff, which are authorized, in certain cases, by the same act; but it will hardly be contended by any one, that, because, of such omission, executions may not be issued against the property of those officers. (See Dudley v. Mayhew, 3 N. Y. Rep. 9. Almy v. Harris, 5 John. 175.)

The final judgment contemplated by the statute under consideration, is, therefore, it appears to me, to be, like all other judgments of the court, not only appealable, but the final determination of the rights of the parties in the action; ” (Code, § 245 ;) that is, it will constitute a full, perfect, and final adjudication and determination by the court, that the plaintiff is entitled to, and shall recover and have from the defendants, the sum awarded ; and, the moment it is docketed, the following provision of our general statutes will be applicable, and will attach thereto, viz : “ All judgments hereafter rendered in any court of record, shall bind and be a charge upon the lands, tenements, real estate, and chattels real, of every person against whom any such judgment shall be rendered; * * and such real estate and chattels real shall be subject to be sold upon execution to be issued upon such judgment.” (2 R. S. 358, § 4.)

At his own option, therefore, the plaintiff may issue his execution and sell the property of the defendants. In other words, the effect of the act is to clothe the plaintiff with the power to divest the defendants of their property, if, and whenever he shall see fit. Can it be that a statute which thus, in and by its operation, places a lien and charge upon the property of a person, and empowers another, at his will, to divest the owner of his estate therein, is less a violation of the constitution than an act which simply directs the property of one man to be. sold, and the proceeds paid over to another P Is there any doubt that if the act in question had merely authorized the recovery of a judgment against the city, without directing the city treasurer to pay it, such act would have been void, because contrary to the constitution ? Or, would the right of the plaintiff to issue, or to refrain from issuing, an execution, at his option, render it valid ? In the case supposed, the plaintiff would be empowered to deprive the defendants of their property, through, and by means of thé judgment, and to vest it, or its proceeds, in himself, at his pleasure; and that is exactly what he is authorized to do by this act, notwithstanding the direction'to the city treasurer, inasmuch as he may or may not present a copy of the judgment roll to the latter.

It may happen, too, that when the judgment roll is presented to the city treasurer, he will be unable to pay, for want of funds. In that case, the judgment creditor may issue his execution and sell the property of the corporation upon the judgment, if a recovery is had ; for so the statute provides as to all judgments for any debts, damages, or sums of money, without exception. (2 R. S. 359, § 4. Id. 353, § 1.)

But, again, the law cannot be. obeyed by the city treasurer without divesting the defendants of their property.

The act, it will be remembered, directs the treasurer to pay the judgment, and charge the amount to the city or county. He is not required to pay it out of his own funds, and to look to the city or county for reimbursement; if he was, the act would be unconstitutional for that reason. But, I think, the legislature designed that the treasurer should pay such judgment out of the moneys in his hands belonging to the judgment debtor, whether a city or county. What construction can be more ’ plain, simple, just and equitable than this ? The whole object and intent of the law, ultimately, is to substitute the city or the • county, as the case may be, in the place of the wrongdoers, and to compel such city or county to pay the damages.

Conceding, however, for argument’s sake, that the judgment is to be satisfied out of any moneys in the hands of the city treasurer, which he is authorized to charge to the city upon payment; how will the matter stand ?

There are two species of funds in the hands of the city treasurer, standing to the credit of the city ; one of them being derived from taxes, and the other arising from loans to the corporation, licenses, and the sales and rents of their houses, wharves, ferries, markets, &c. The last mentioned class of moneys are as much the property of the corporation, in absolute ownership, as is the ground upon which its city hall stands. The moneys derived from taxes are collected and paid into the hands of the city treasurer, under and by virtue of an annual act, specially passed for that purpose by each successive legislature, which "empowers and directs the supervisors of the county to raise by tax certain sums of money, amounting, in the aggregate, to some two or three millions of dollars, for the use of the mayor, aldermen and commonalty.

These moneys, thus raised by taxes, do ’not belong to the corporation ; because no grant to them is expressed in the act, and no grant from the sovereign can be implied. They are, merely, trustees or custodians of the funds, for the purposes declared in the aet.

But such funds cannot, legally, be applied by the city treasurer to the payment of the judgments contemplated by the statute upon which this action is founded, inasmuch as those tax laws, passed, too, subsequent to the enactment of the statute in question, expressly direct and provide that the moneys so raised by taxation shall be expended upon and for the particular objects specially enumerated in the laws themselves ; among which, the payment of judgments of this character is not to be found. (See Sess. Acts, 1862, 1863.) For we must bear in mind, the question before us is, not whether the act is, per se, a violation of the constitution, like a statute which, of itself, divests a person of his property without the aid of other machinery, or any intermediate agency; but whether, if carried into effect by means of a judgment here, such act would, at the time the decision below was made, have effected a violation of the paramount law of the land, in view of the facts which existed at the time the right of action is claimed to have accrued, and when the judgment at special term was rendered.

But, beyond this : In 1857, two years after the passage of the-statute under consideration, an act was passed by the legislature, purporting, in its title, to be An act to amend the charter of the city of New York,” (Valentine’s L. City of N. Y. p. 276,) which provides that annual and occasional appropriations shall be made by proper ordinances of the common council, for every branch and object of city expenditure ; and no money shall be drawn from the city treasurer, except [unless] the same shall have been previously appropriated to the purpose for which it is drawn,” (§ 31;) which act still stands unrepealed. It is impossible to suppose that the legislature designed to compel the corporation to consent, by making the appropriation mentioned in this statute of 1857, to be deprived of their property, contrary to their will, and in violation of the constitutional provision ; but if the first portion of the section cited is to be so construed, it is, for that reason, void and inoperative as to such cases. The prohibition contained in the latter clause, however, is valid; and not only has no appropriation been made by the common council for the payment of judgments in actions of this description, but, as we have seen, they are, substantially, forbidden by the subsequent statutes of 1862 and 1863 to make any appropriation of the moneys derived from taxes, to that object. In effect, therefore, that provision of the act under consideration which directs judgments to be paid by the city treasurer, is repealed by the statute of 1857 ; for, leges posteriores, priores contraries ábrogant.

hi or'is the plaintiff aided, in this regard, by the provision contained in the annual tax law of 1863, which authorizes the mayor, aldermen and commonalty to borrow money upon their bonds, to pay such judgments as may be recovered against them after the annual tax for that year shall have been levied, (as would have been the case here had judgment gone for the plaintiff at special term,) and which also empowers the supervisors to levy taxes in 1864, for the payment of such bonds. For that is a mere power conferred upon the corporation, and may or may not be exercised, at their pleasure ; and unless exercised, no moneys are to be raised by the supervisors for the payment of the contemplated bonds, as there will be none. If, instead of a permission to the corporation to borrow money, the act imperatively commanded them to do it, such act would certainly be void.

It appears to me to be quite clear, therefore, that the city treasurer cannot pay the judgments contemplated by the act of 1855, out of any moneys in his hands, other than those which belong to the defendants in absolute ownership; and, as he is imperatively commanded and required by the act to pay such judgments, and charge the same in his accounts against the city, it follows that he must pay the same out of the funds so belonging to the corporation.

But further : Even assuming that the power given to the plaintiff to obtain payment from the city treasurer supersedes the right given to all creditors in judgments, by other statutes, to issue an exception for the collection of the same, still, it seems to me, a judgment obtained in an action of this description will carry interest, (Laws of 1844, ch. 324, §4,) and will be a lien and charge upon the real estate of the debtor, from the docketing of the same until it shall be paid. For, certainly, the judgment itself is as much a portion of the remedy given to the plaintiff, as is the right to bring an action, or to collect such judgment from the city treasurer, in the manner prescribed by the act. Had the statute merely authorized the recovery of a judgment, without going further, the plaintiff would have been entitled not only to an appeal, but to collect the same by execution. (Dudley v. Mayhew and Almy v. Harris, supra. Miller v. Taylor, 4 Burr. R. 2303. Beckford, v. Hood, 7 T. R. 627. Ewen v. Jones, 2 Salk. 415. 2 Inst. 53, 74, 118. Bac. Abr. St. 16. Clark v. Brown, 18 Wend. 213.)

The judgment, in that case, clearly, would have been clothed with all the attributes of money judgments in other cases, and the plaintiff therein would have been entitled to all the rights given by statute to creditors in like judgments. The substitution of the one mode of collection for the other, deprives him of no right which the law gives him as judgment creditor, except that of issuing an execution, even if that is an exception. The lien remains.

Can it be doubted that an act which thus authorizes the creation of a judgment debt against the defendants, without their assent and contrary to their will, and charges their lands for its payment, operates to deprive them of their property, pro tanto, just as much as would the sale-of a portion of such lands on execution ? If that is not so, the legislature may, at their pleasure, legally, compel a man, against his will, to mortgage his property to another, although they cannot force him to convey it, without violating the constitution ; and the absurdity of that proposition is too gross to require discussion. The effect of this lien or charge will be to deprive the corporation of the right to use, sell or lease the same, free of incumbrance ; and that right is, of itself, property. (Wynehamer v. The People, 3 Kern. 378.) Such charge upon the defendants’ lands, therefore, will not only deprive them of their property without due process of law, but will also impair the obligation of the contract embodied in their charter, which declares that such corporation “shall and may forever hold, enjoy and use the property granted, with the profits thereof, without hindrance or impediment ” of the sovereign grantor, or his successor as such. It should be considered, too, in examining this branch of the subject, that the plaintiff, if he shall so elect, may refrain for years from presenting his judgment roll, or collecting his judgment, and, in the .meantime, may permit the interest to accumulate. Indeed,- a safer or more profitable investment than this could, probably, hardly be found.

If I have not erred in the foregoing conclusions, it follows, in brief:

First. That a judgment in this action in favor of the plaintiff, will entitle him to demand the payment of the same from the city treasurer, out of the funds in his hands belonging to the corporation as owners ; and that he may compel sqch payment by mandamus. The duty of the treasurer to pay is imperative, and the judgment will be a bar to all constitutional objections.

Second. That the plaintiff in such judgment nray, at his option, issue his execution thereon, and sell the property of the corporation.

Third. That such judgment will be a lien and charge upon all the real estate belonging to the corporation, amounting to many millions of dollars.

Fourth. In either of those cases, the defendants will he deprived of their property by and through a judgment in favor of the plaintiff, contrary to the express prohibitions contained in those supreme and paramount laws of the land, which judges are sworn to support and enforce.

We have nothing to do with the question, suggested at the hearing, as to whether recoveries under the act will tend to prevent or diminish the evil sought to be remedied by it; or, on th(; contrary, whether, considering the facility with which mobs may be raised and property destroyed, and heavy damages recovered therefor, through the testimony of the plaintiff himself, the danger of incendiarism may be greatly increased. The reasons for or against the policy of the statute are exclusively within the province of the legislature. We are, simply, to examine carefully, and determine without fear or favor, whether the act in question can be carried into effect by means of a judgment against the defendants in this case, without violating the constitutional provisions above referred to. My mind, for the reasons I have mentioned, is irresistibly forced to the conviction that it cannot.

I am, therefore, of opinion that the judgment at special term was right, and ought not to be disturbed.

Judgment reversed, 
      
       The case of Darlington v. The Mayor, &c. of New York, in the Court of Appeals, (31 N. Y. Rep. 164,) involves the same questions examined and decided in the above.
     