Peckham, J.
Preliminarily it is objected, that this motion cannot be made by any one, except by the counsel to the corporation; that another attorney cannot appear without a substitution; further, that no one but the counsel to the corporation could make the motion, as the statute of 1863 gave that exclusive right to him, and made it his peculiar duty; that the act of 1859, which allowed the comptroller to intervene and move to set aside a judgment that he had reason to believe was obtained by collusion or was founded in fraud, was unconstitutional; if not, that it was repealed by the act of 1863. (Laws of 1863, p. 409.)
I have carefully considered all these objections, and some others, and think they cannot prevail. As to the merits, is there evidence here that this judgment was “ obtained by collusion or founded in fraud % ”
In my judgment, sufficient ground is found in the facts to warrant the court, at Special Term, to set aside this judg[392]*392ment and allow the defendants an opportunity to defend this action.
It is proper, in a motion of this kind, irrespective of the statute, to look somewhat at the judgment, and, though it may not be “ founded in fraud,” to see if it be just. The court may look at the whole case and all its attendant circumstances. Of course, if there has been a bona fide trial on the merits, this act never intended to give defendants another. That would be a plain wrong under a pretense of justice; but the ground of the action may be considered in reference to the fact of collusion.
It appears that the plaintiffs never had a contract with the defendants as to the aqueduct. They never had, as it had been distinctly adjudged by the courts, any legal or equitable claim against the defendants; after this had been decided, they procure the passage of the act under which this award was made. By their contract, they proposed to do all the work and find all the materials for less than* $137,000. Their award for damages is $61,821, and the chief engineer states that the work and materials actually cost over $200,000. Yet, the plaintiffs, so far as the facts show, recovered this award simply for profits they would have realized upon a contract never made. Thus the case .stands on its merits: First, they never had a contract with the defendants; second, they proposed to find materials and do work for less than $137,000, which actually cost, according to this affidavit, over $200,000, and yet they are awarded $61,821 for profits.
As to the constitutionality of this law. The Constitution declares that “ no private or local bill, which may be passed by the legislature, shall embrace more than one subject, and that shall be expressed in the title.” (Art. 3, § 16.)
The title of this act is as follows: “An act to facilitate the acquisition of land for a junction gate house, and to connect the same with the new reservoir and the city mains in the city of New York, and to provide for the settlement of claims for damages connected therewith.”
[393]*393Was this bill, irrespective of “the claims for damages,” a local bill % It provided for the acquisition of a small piece of land, of less than a hundred feet square, in the city of Hew York, by the Croton board for said city, and for an improvement thereon by erecting a gate house, etc. It was simply a local improvement thus authorized. It did not contain any general provisions of any character, as to the acquisition of other lands by the city, or for any other general purpose, but it authorized a local improvement upon a comparatively small piece of land. What element did it lack of a local bill ? If a local bill, as I think it was, then it could embrace “ but one subject,”, and that should be “ expressed in the title.” What had the settlement of the claims for damages of these plaintiffs to do with the subject of that local bill \ Their claim was no incumbrance on the land to be acquired, that it became necessary or proper to extinguish it; it had as little to do with the improvement authorized to be made thereon.
The plaintiffs’ claim in no manner affected the “ subject ” of that local bill; neither added to or detracted from it. Therefore it was no part of the “ subject ” of that bill; but it was another and a different subject. . So far as it respects the plaintiffs, it was a private bill for damages for not being allowed to construct that gate under a prior act of the legislature without any reference to this statute.. This local bill, therefore, embraced more than one subject, and it was contrary to the provision of the Constitution before cited.
Again, it is entirely clear that this act, so far as respects the provision for the relief of the plaintiffs, was a private bill. It could, therefore, “ embrace but one subject, and that shall be expressed in the title.” (Const., art. 3, § 16.) But, here were two subjects, whether the other was a local bill or not; and a private bill, as this must be conceded to be, can “ embrace but one.”
The evils apprehended and guarded against by this constitutional provision, are found here. These bills did not stand on their separate merits. The plaintiffs state, in substance, that the bill could not have passed without the provis[394]*394ion for their benefit. They had opposed it successfully till that was inserted.
Again, the “ subject'” of this private bill was not expressed in the title. ■ The title, so far as it can be claimed to refer to this subject, is “ and to provide for the settlement of claims for damages connected therewith.”
The plaintiffs had no claim for damages for any thing authorized to he done under this act. Their claim was in no manner “ connected therewith.” Theirs was an old claim •for damages for not having a contract under a prior law, to build this gate.
In fact this reference in the title to the subject of the act, was entirely proper as applicable to those to whom compensation- was authorized under this act, for interfering with their rights of property. • From such a title I think no one would have- suspected such a claim as this. I perceive no purpose of - this constitutional provision except to prevent fraudulent legislation, the smuggling through of acts containing provisions unknown to the "body of the legislature. This constitutional provision would be a great obstruction to 'such purposes, and deserves to be upheld.
Whether this mandate of the Constitution has been complied. with by a sufficient description of the subject in the title of an act, it seems to. me is plainly proper for the courts to determine, not for the discretion of the legislature or for the adroitness of those who may deceive the legislature. It seems to me absurd to say that a compliance with this mandate is a matter of discretion for the legislature. That is equal to saying that the provision of the Constitution ■shall be obligatory, provided the legislature shall choose to obey it. If the absence of any title would have rendered this act void, certainly a false or delusive title would not make it valid. But had the legislature power to pass this act % This is an interesting and most- important question, and I am free to admit that the tendency' of the modern decisions in our courts favors its validity. But my impressions are strongly against it. The great object of all government in civilized countries, is the security of the person and property [395]*395of its citizens, and of the rights pertaining to each. It has been well remarked by an able judge, that it has never been allowed to be a rightful attribute of sovereignty in any government professing to be founded on fixed laws, however despotic the form of the government might be, to take the property of one individual and bestow it upon another. The possession and exertion of such a power would be incompatible with the motive and' object of all government. This power, therefore, instead of being acknowledged, was expressly repudiated by the Eoman law at the height of imperial despotism. (Bloodgood v. M. & H. R. R. Co., 18 Wend., 56), per Senator Tbaoy. To the same effect, see Taylor v. Porter (4 Hill, 144), and cases there cited.
The possession of any such power could never be presumed by a mere grant of “the legislative power of this State.” In Wilkinson v. Leland (2 Peters, 657), Mr. Justice Stoey said such a power “has been constantly resisted as inconsistent with just principles, by every judicial tribunal in which it has been attempted to be enforced.” The exercise of such a power is against what Chief Justice Nelson, in Taylor v. Porter, calls “ natural right,” but I do not propose to base my opinion on that ground.
In this case it had been judicially determined prior to the passage of this act, that the plaintiffs had no claim against the defendants for damages, legally or equitably. They had no contract, they had done nothing, and they had furnished nothing for the defendants.
Is this not then the taking of the property of the defendants and bestowing it upon the plaintiffs, for the legislature to declare, under these circumstances, that the defendants shall pay to the plaintiffs any given sum, or any sum a board of arbitrators shall award ?
But it is urged that the defendants own no property, that all their property belongs to the State or to the public, and hence the legislature may dispose of it as they will. Suppose it be conceded that all the property of the defendants belongs to the public, or is public property, still the legislature is the mere trustee or agent of the people to dispose of [396]*396and manage it for public purposes—for the public welfare. Is not such a disposition of defendants’ property a total violation of the trust reposed in the legislature ?
As between citizens, would any court hesitate to enjoin a trustee from thus prostituting his trust; from thus diverting the property and ruining the interests of his principal ?
If it be the property of the public, the legislature, as the trustee of the people, can lawfully appropriate it only to public, not to private, purposes. The legislature can properly act only upon that view. It should always he for a public purpose, a public benefit. It is undoubtedly for the public benefit, that just demands of individuals against the State should be satisfied; appropriating the property of the State therefor would, of course, be applying it to a public purpose.
Eminent judges, who have most strongly upheld the powers of the legislature, admit that there are some things that the legislature cannot do, although not prohibited by the Constitution.
In The People v. The Mayor of Brooklyn (4 Comst., 424), Mr. Justice Ktjggles says: “It maybe proper here, although not strictly necessary, to express the opinion that money cannot be exacted by the government by right of eminent domain, excepting, perhaps, for the direct use of the State at large, and when the State at large is to make the compensation.
The exigencies of a State government can seldom require the taking of money by virtue of this power, even in time of war, and never in time of peace.” He places this lack of authority on the ground that the framers of the Constitution could not have intended to delegate such a power, “because it is entirely unnecessary.”
So in Town of Guilford v. The Supervisors of Chenango County (3 Kern., 147), Mr. Justice Dehto says: “And there is moreover a principle arising out of the distribution of political power among the great departments of the government, which prevents the legislature from attempting the exercise of judicial authority.”
It is said the defendants have no private as distinguished from public property. (But see Bailey v. The Mayor of New [397]*397York, 3 Hill, 531, and cases-there cited; Britton v. The Mayor, etc. 21 Howard’s Pr., 251; 2 Kent’s Com. [5th ed.], 305, and the eases cited in Darlington v. The Mayor of New York, 31 N. Y., 164.)
If the property of any given locality may be appropriated by the State to any private purpose, it is not of the slightest practical importance whether it be called public or private property.
In The People v. The Mayor, etc., of Brooklyn (4 Comst., 427), it is said that “ the power of taxing and the power of apportioning taxation, are identical and inseparable,” and that power is vested “ exclusively” in the legislature.
If A owns three thousand acres of land, employs three hundred workmen thereon, and one of them claims that A owes him $1,000, which A utterly denies, the legislature by this doctrine may levy a tax for that $1,000 upon the district composed exclusively of those lands, and pay the amount over to the complaining workman.
This is plainly taking the private property of one man and giving it to another. I think ho judicial tribunal would hesitate to pronounce such a law unconstitutional. The act would be a plain violation of the Constitution, which declares that no person shall “be deprived of life, liberty or property without due process of law.” The right to tax is not thus denied, but to tax for such a purpose. It has been properly said that, “it is unfit for the judicial department to inquire what degree of taxation is the legitimate use and what may amount to the abuse of the power.” Ho such right is claimed, but the purpose for which the property of a locality—of a municipal corporation—is required to be taken, may become a legitimate subject of judicial inquiry.
Chancellor Kent says: “ It undoubtedly must rest, as a general rule, in the wisdom of the legislature, to determine when public uses require the assumption of private property; but if they should take it for a purpose not of a public nature—as, if they should take the property of A and give it to B or, if they should vacate a grant of property, etc., under the pretext of some public use or service—such cases [398]*398would be gross abuses of their discretion, and fraudulent attacks on private rights, and the law would clearly be unconstitutional and void.” (2 Kent [5th ed.], 340.) See discussion of the subject of legislative and judicial power, with full references, in Sedgwick -on Const. Law, 160, etc.
It is, perhaps, impracticable to inquire as to the purpose of the appropriation of property belonging to the State at large. In imposing a tax on the State, “government .acts upon its constituents,” which is some guaranty against erroneous or oppressive taxation. Hot so as to localities; their property, may be given away despite the opposition of their local representatives. In my opinion the provisions of the Constitution for the protection of the rights and property of persons apply, and were intended to apply, generally and -measureably to all municipal corporations. In the case at bar, I think the legislature had no right to appoint a board of arbitration to determine-how much damages the plaintiffs were equitably entitled to. In a late case in this court, I am aware that-this right is defended by a very distinguished judge. (Darlington v. The Mayor of New York, 31 N. Y., 164;) It is there placed on the same principle under which a board has been frequently created to adjust claims against the State. But, with great deference, the principle is entirely- different in the two cases. The State cannot be sued. Hence "‘the legislature may itself determine, or may appoint a board to adjust the claim.
All municipal corporations, counties, towns, cities and villages may, and always could, in this State, sue and be sued in courts • of law and equity. There is no reason why the legislature should ?,ct as a court, assuming judicial functions as to all claims against such municipalities; nor have they any more right to create a new tribunal proceeding contrary to the course of the common law, and thus deprive such a municipality of the right of trial by jury.
There is no reason why this right of triál by jury, secured to every citizen, should not belong to such corporations; no reason why the imposition of this corporate machinery should deprive the individuals of their personal rights. Public [399]*399policy and common justice would grant such right, and it seems to me it cannot be supposed that the framers of the Constitution intended to exclude such corporations from its benefits.
Judicial power is not granted to the legislature in the great divisions of power in the government. (See Wynchamer v. The People, 3 Kern., 391.) The legislature has never been regarded as the proper tribunal for judicial investigation.
The determination of the question whether any thing, and, if any thing, how much, is due from the defendants to the plaintiffs, is a judicial question, and properly belongs to the judicial department of the government. That it is entirely a judicial question I think cannot well he disputed. Its exercise by the legislature as to claims against the State at large is justified from the necessity of the case. The government has provided no other remedy for the adjustment of claims against the State at large.
But the Constitution has provided other tribunals for the adjustment and determination of all claims against municipal corporations. Legislative “judgments,” as between citizens and local corporations, are, I think, in our State, of modern growth, equally unauthorized and impolitic.
There is a plain distinction between this case and the cases of the Town of Guilford v. The Supervisors of Chenango County (3 Kern., 143), and Brewster v. The City of Syracuse (19 N. Y., 116). The first of these cases relies upon The People v. The Mayor of Brooklyn (4 Comst., 149), which I think is no authority for the doctrine; and the second follows without any general discussion. But I am not disposed to deny that those decisions are at war with the views here presented. Those cases, as reported, presented strong equities. In one, money had, in good faith, been expended in conducting a suit by order of a town-meeting; in the other, services rendered and materials found. The legislature ordered a tax upon the localities in each case for their payment. It is claimed that the legislature have the right to levy a tax to satisfy a demand against a locality. The demand being con[400]*400ceded, the right is also conceded. But if the legislature, as in the case at bar, admit the demand to be unliquidated, dis- , puted and denied, in my judgment its adjudication belongs exclusively to the courts established under the Constitution. When the legislature, then, assume to appoint an arbitration for its settlement, and order their award to be paid, they violate that provision of the Constitution which declares that “ no person shall be deprived of life, liberty, or property, without due process of lawdeprived thereof, “ not by an act of the legislature, but in the due administration of the law itself, before the judicial tribunals of the State.” (3 Kern., 393.) It also violates that provision which secures “ the trial by jury in all cases in which it has been heretofore used.” Assuming that these provisions apply to .municipal corporations as well as to citizens and to other corporations, as I think they do, this act is a plain violation of both.
By the act of establishing this board of arbitration, the legislature concede that the claim is not admitted—that it is unsettled and denied. In such cases the courts should determine it.
When the legislature orders a tax to be levied for the payment of any alleged claim against a locality, it is, I admit, more delicate and practically more difficult to declare it void.
If it appear, however, or be conceded, that the tax is for a claim for services or for damages disputed and denied by the corporation, then in my judgment the act would be void, for reasons before given.
If the law be otherwise, then the legislature is without limit in its power to dispose of the property of these localities for any and every purpose, to gratify a friend or a favorite, without any responsibility to their constituents, as it would generally be accomplished notwithstanding the opposition of the local representative.
Whether the legislature give what is termed by the counsel a “ legislative judgment,” on an ex parte hearing, or, what is regarded as next in value, appoint a board to award what they deem equitably due to the claimant and order its [401]*401payment, the principle at the foundation of each is the same. It need not be confined to contracts or quasi contracts. It applies quite as well to torts. After a long and unsuccessful litigation in the courts, a person claiming to have been injured by a defect in a sidewalk, or because the mayor spoke disrespectfully of him, may come to the legislature and get a judgment, denied to him in the legally appointed judicial tribunals of the land. All suits of every character against a municipal corporation, may be appealed from the courts and heard ex parte before the legislature; nor will this doctrine confine the legislature to the relief of cases sufficiently plausible to have been the subject of an unsuccessful suit. If A be a good Baptist or a good Romanist, or if he be a handsome man, therefore the legislature, in their unlimited power, may order the defendants to pay him $10,000 a year during his natural life. Such a law, I think, would scarcely, be held valid. The Constitution has established judicial tribunals for the exclusive determination of claims against municipal corporations as well as against citizens, and intended and authorized ho appeal therefrom to the legislature.
Claimants against municipal corporations have in this respect, the same rights and remedies they have against citizens, and they ought to have no more.
There seems to me no sound reason why the citizens constituting this municipality should not in cases like this have the same right of trial by jury in their corporate that they have in their individual capacity. For the legislature to adjudge these claims against localities, or to appoint extraordinary tribunals to determine them, is, in my opinion, at war with the policy and principles upon which our government was organized.
These views are not in conflict with the power of the legislature to order the sale of certain public property of a municipal corporation, and to appropriate the proceeds to other public purposes of the corporation; nor do they conflict with the decision in case of The People v. The Mayor of Brooklyn,) in 4 Comst., 427.
[402]*402The exercise of -the right of eminent domain is a peculiar proceeding and specially provided for in the Constitution. When the property of a private citizen is taken for public purposes, his compensation therefor should be paid by the public. The court held that the legislature had the power to determine what portion of the public should bear this conceded public burden.
In The Town of Guilford v. Cornell, when before the Supreme Court, as reported in 18 Barb., 644, Mr. Justice Gbay, in delivering the opinion, remarked: “ I .have never heard it doubted that whenever a moral obligation exists on the part of the government to relieve one of its citizens, sufficient to support a promise if the same state of things existed between individuals, .the legislature has the right to recognize the obligation and discharge it by the imposition of a tax. The legislature, being the only department of the government that can provide the relief, * * must of necessity be the exclusive judges when the interest or the honor of the government justify a tax,” etc. In my opinion, the legislature has nothing to do with providing for claims against municipal corporations, unless their validity is established or conceded. Neither.the “interest” nor the “honor” of the government is involved in the question whether a local corporation owes a debt or not.
Citizens having claims, -legal or equitable, against a municipal corporation, have abundant remedies in the courts established by the Constitution—remedies for all legal or equitable rights, and they ought to have a remedy.for no other. Occasional cases' of hardship, no doubt, are • found there as elsewhere, when what may be thought by some to be a moral equity is declared not to be a legal obligatory equity. Such exceptional cases form no ground for a change of the law or of .the powers of any department of the government. It does not seem to be advisable to extend the doctrine of the Syracuse or of the Chenango county cases. They do not sustain this law, though they are, perhaps, inconsistent with some of the views here expressed. This was not a permissive, but a compulsory, arbitration. The [403]*403mayor, not the defendants, was authorized to appoint an arbitrator. If it were voluntary or permissive, it is difficult to see why the plaintiffs went to the legislature when both parties, if willing, had already abundant authority to arbitrate. If permissive merely, the defendants never ratified or entered upon it. The mayor is not the defendants. ¡Raising the money to pay the judgment does not estop the defendants from contesting its validity.
The order appealed from does not'finally dispose of the cause, it merely affords an opportunity for a trial upon the merits; it is not, perhaps, therefore necessary definitely to decide the constitutional questions argued at the bar, though their discussion and consideration were entirely proper and pertinent. There are other grounds made clearer by that discussion upon which the order may be affirmed. The order is affirmed with costs.