People ex rel. Corning v. Benton

The grounds upon which the plaintiffs rely for their right to enforce the remedy in question, as stated in the argument made before us, are substantially these: 1. That the right to the tolls was conferred by the act of 1823, and must necessarily continue until waived or released. 2. That this right was never waived, and was in no wise released or' surrendered until actual payment of the sum of $30,000 as a substitute for the canal tolls. 3. That there is nothing in the act of 1849, which interferes with the right of the pier proprietors to these tolls.

The defendant relies upon three grounds of defense, each of which he claims constitutes an effectual bar to the plaintiffs’ claim. 1. That by the provisions of the act of 1849 and the acts of the pier owners under the same, all right and title to these tolls on the part of the pier owners were extinguished and released. 2. That the same result was effected by the release and receipt in full which the pier proprietors voluntarily executed. 3. That the relators never had any legal right to receive tolls under the act of 1823, by reason that said act is unconstitutional and void.

These questions, so far as necessary for the determination of this case, will now be considered.

The act of 1849 was passed on the 4th of April, of that year, and before the opening of the canal for that season. By the first section the sum of $30,000 was to be paid to the pier owners “in lieu of tolls as heretofore paid” to them. The word “heretofore” refers to the time of the passage of the act; and the clause in question would seem to import that from, that date the interest of the pier owners in the *444tolls, as such, was to cease, and a sum in gross to be paid to them as a substitute therefor, and from that time. It is true no provision is made for interest on that sum in case the payment was delayed, as would seem to be equitable in such a contingency. But it is probable that immediate or speedy payment was contemplated by the legislature. Provision is made in the same section for borrowing on the credit of the state a sum adequate to pay the $121,462.63 to be paid to the city of Albany, and the $30,000 to be paid to the pier proprietors. By the third section of the act certificates of stock for this loan were to be issued and disposed of, for the purpose of raising this money; and there is nothing in the act to show that this was not to be done forthwith, or at least immediately after the consent of the parties to whom these sums were to be paid had been obtained. It is true, also, that provision is made in the act, for the payment of interest on the sum directed to be paid to the city of Albany “from the twentieth day of February eighteen hundred and forty three to the time of such payment.” But two reasons for the distinction are apparent. 1. The amount to be paid to the city of Albany rvas to defray expenses theretofore incurred, and not as in the case of the pier owners thereafter' to accrue. 2. The existence of such a claim on the part of the city was recognized by the act as equitably dating back more than six-years before the passage of the act, and it was doubtless deemed fair to pay interest thereon from that period.

The 6th section of the act of 1849 is as follows: “ The ninth section of the said act (of 1823) whereby certain tolls on canal boats, craft and lumber are directed to be collected and to be paid over to the pier owners, is hereby repealed. But such repeal shall not affect the rights of said pier owners to any tolls heretofore collected, to which they were entitled under said act.” This seems to he a plain legislative declaration of the object and intent of the law makers as to the question now under consideration. It provides, in effect, *445that no future tolls are to be paid over to the pier proprietors. And it would seem to be manifest from this section alone that the legislature contemplated that an acceptance of and compliance with the jrrovisions of the act by the pier owners would be an effectual extinguishment of all right to tolls accruing after the passage of the act, and that such was the intention of the parties thereto. It is said that this section was inoperative without the consent of the pier owners. Admit that this is so. They have given their consent. It is said that the whole act must be construed together, and that the consent was given upon the implied understanding that their rights to tolls should not be extinguished until payment of the substituted consideration. I can not give such a construction to the act, in the face of so plain a declaration. The legislature repeals the 9th section of the act of 1823 by which alone the right to the tolls is conferred. The relators consent to this repeal. This consent is not given, it is true, till September, 1849, nearly six months after the passage of the act. But from that time it becomes valid and operative, and must be construed according to its plain terms and obvious import. The words heretofore” and “ hereafter,” contained in the act, refer to the period of its passage, and not of its acceptance by the pier owners.

The 8th section of the act of 1849 is that which prescribes the mode and period in which the consent and release are to be given. They must be assumed to have been in conformity to the provisions of the act. The consent was therefore a consent, in effect, to each and every section, provision and direction in the act. The release was “ a release of all their (the proprietors) interests in said basin.” This fairly implies not only a release of any right of property which they may be supposed to have had in the basin or the waters thereof, but of all right to tolls or charges growing out of their use or occupation by others.

The 9 th section of the act of 1849 is framed, it would seem, in accordance with previous sections, upon the idea that *446henceforth the interest of the pier owners in the tolls was at an end and was to he thereafter vested in the state, for it provides that “ the same rates of toll shall hereafter he charged and collected for said hasin as on the canals of this state, computing the same in all cases as one mile in length, and which shall be considered as forming part of the canal revenus, and not be diverted therefrom, and the said basin shall remain free for canal boats and canal craft from any charge . for wharfage or dockage, and the said basin shall be owned by and remain the property of this state and be under the care and charge of the canal commissioners.”

It is impossible, I think, to read the act of 1849, and especially the sections from which I have quoted, without a decided convictioh that the sum to be paid' to the pier proprietors Was designed to extinguish their right to tolls, from and after the passage of the act. It was not any particular or specified tolls to which the act referred, but tolls generally—the right to tolls. A new mode of compensating the pier owners for their outlays was provided, .to wit, by payment of the principal sum disbursed, instead of interest thereon in the shape of tolls. This latter mode of compensation was to cease from that date..

A specious but I think unsound argument in opposition to this view is attempted to be derived from the legal principle that a sale is not complete, and title does not pass, till payment or delivery. This is true as a general rule, but must-be taken with the qualification, “unless the contrary is expressly agreed or is fairly to be inferred from the declarations of'(conduct of the parties.” This qualification, I think, applies to the present case. The act is not suscep- ■ tibie, in my opinion, of any other fair and reasonable construction/-than that the right to tolls and the interest of the relators in the basin and the revenues thereof were designed ■ by- the parties (the legislature and the pier owners,) to be extinguished from the period of the passage of the act, in the event of its subsequent acceptance by such proprietors.

There may be a strong equity that as there occurred an unexpected delay in paying to the pier owners the sum intended for them by the act in question, and apparently arising in part at least from the action of the state officers, the pier proprietors should receive interest on the $30,000 either from the passage of the act or from the date of their acceptance of its provisions. But these are equitable considerations which can not influence our action, and must be addressed to the legislature.

Having confidence in the view of the case here presented, and regarding it as fatal to the relators’ right to maintain this proceeding, I do not deem it necessary to discuss any other questions raised in the case, and particularly that involving the constitutionality of the act of'1823.

There must be judgment for the defendant, on the demurrer, with leave to the plaintiffs to withdraw the same and plead to the return, on payment of costs.

Rogebom, Pcclcham and Ingalls, Justices.]