Action by Barto against Himrod and others, for wrongfully taking his wagon.

The defendants, in their answer, justified the taking of the wagon by them as trustees of a school district, for a tax voted by the district in pursuance of the act to establish free schools, passed March 26, 1849. The plaintiff, in his reply, denied the validity of the act, on the ground that it was not duly passed by the legislature, it having been submitted to the electors to determine by their votes whether it should become a law.

The jury, at the trial in September, 1850, returned a special verdict, fixing the value of the property taken, and not finding any other fact.

The judge, before whom the cause was tried, under section 246' of the Code, reserved the case for further consideration, and subsequently rendered judgment in favor of the plaintiff, for the value of the wagon and costs; which judgment was affirmed at general .term. Ho exceptions appeared on the record.

Meld (on appeal from that judgment), that the court must pass upon the case as presented by the pleadings and verdict, and if upon the facts so appearing a cause of action was not shown, the judgment should be reversed.

*114That the act of March 26, 1849, for establishing free schools throughout the state, was not passed in accordance with the Constitution.

. That the legislature had no authority to refer, to the electors of the state, the question whether that act should become a law ; nor had the electors power to determine that question. When the people adopted the Constitution, they surrendered the power of making laws to the legislature, and imposed it upon that body as a duty. They did not reserve to themselves the power of ratifying or adopting laws proposed by the legislature, excepting in the single case of contracting public debt. Judgment affirmed.

(S. C., 8 N. Y. 483.)