State Debts

Art. VII, §§ 5, 6

the singular number, and declaring that the debt shall be for the single object of raising the money to pay the appropriation herein named.' But the constitution cannot thus be nullified. The appropriations are in fact many, and their objects many and diverse, and they cannot be reduced to one, and the objects and works made a unit by the mere dash of a pen or the construction of a sentence. Neither is the object of the debt made single by declaring it to be for the payment of the aggregate of all the sums of money appropriated by the act. The constitution would be of little value as a restraint upon the debt-creating power if it could be evaded by bringing together in one law distinct appropriations of different amounts, for a canal in one part of the state, in aid of a railroad in another, building a lunatic asylum in another, and a state prison and a normal school building in still other parts; and then a debt could be authorized for the single object of raising the money to pay the said appropriation.'' Reference to comptroller's report to fix object.- Reference may not be made under this section to the comptroller's report to fix the single work or object" for which a proposed debt is to be created.

a reference for that purpose is void hereunder. (1873) 52 N. Y. 556.

A statute relying on such
People v. Kings County,

Submission of bill authorizing debt with another bill. The provision that no law authorizing the incurrence of indebtedness by the state shall be submitted at any general election at which any other law or bill is to be voted on, is mandatory and not merely directory. That was decided in People v. Kings County, (1873) 52 N. Y. 556, with reference to a former constitutional provision prohibiting the submission of such a law to the people at any general election at which any law, bill, or constitutional amendment is to be voted on. The court ruled chapter 700, Laws of 1872, authorizing the creation of a debt for purposes named therein, invalid insomuch as it was submitted to the people together with a constitutional amendment at the same general election.

Incurrence by state officer of obligation in excess of debt authorized.— A public officer charged with the execution of some work to raise money for the prosecution of which the people have authorized the creation of a debt, cannot obligate the state in any amount in excess of the sum voted, and contracts nade by him purporting so to bind the state are unenforceable to the extent of the excess. Nor can section 10 of this article be invoked to give validity to such contracts where the work for which the debt was authorized is the improvement of a canal. Baker v. New York, (1902) 77 App. Div. 528, 78

N. Y. S. 922.

§ 5. Sinking funds.

Use restricted.

The sinking funds provided for the payment of interest and the extinguishment of the principal of the debts of the State shall be separately kept and safely invested, and neither of them shall be appropriated or used in any manner other than for the specific purpose for which it shall have been provided.

Amendment of 1874, Art. VII, § 13; continued without change in Const. 1894, Art. VII, § 5.

§ 6. Claims barred by lapse of time.

Neither the Legislature, canal board, nor any person or persons acting in behalf of the State, shall audit, allow, or pay any claim

which, as between citizens of the State, would be barred by lapse of time. This provision shall not be construed to repeal any statute fixing the time within which claims shall be presented or allowed, nor shall it extend to any claims duly presented within the time allowed by law, and prosecuted with due diligence from the time of such presentment. But if the claimant shall be under legal disability, the claim may be presented within two years after such disability is removed.

Amendment of 1874, Art. VII, § 14; amended Const. 1894, Art. VII, § 6. Applicability of section to subdivision of state. This section is intended to prohibit the allowance of state claims against the state, but has no relation to claims against subdivisions thereof. People v. Board of Education, (1908) 126 App. Div. 414, 110 N. Y. S. 769, affirmed (1908) 193 N. Y. 601, 86 N. E. 1130.

Unenforceable claim as subject to lapse of time.- A claim against the state which is unenforceable by reason of some vice or defect that may be cured or waived by the state, has no existence, for the purpose of determining whether or not it is barred hereunder by the lapse of time, until it is made enforceable by the action of the state. O'Hara v. State, (1889) 112 N. Y. 146, 19 N. E. 659, 8 A. S. R. 726, 2 L. R. A. 603. In that case the facts were as follows: The plaintiff performed services and furnished materials under the direction of the quarantine officials during the years 1875 and 1876, in the repair of steamers and other property of the state used for quarantine purposes in the harbor of New York. The board of audit having held the state not liable for such services and materials, a statute (ch. 472, Laws of 1886) was passed, directing the board of claims to audit the plaintiff's claim. The court concluded that the statute of limitations applicable between citizens to such claims did not commence to run until the passage of the validating act mentioned and that the claim was not barred by lapse of time. These remarks were made. "By the legislation of 1886 the authority of the quarantine officials to contract for the services and materials in question on the part of the state, was ratified and approved by the legislature, and the claim for compensation therefor, then had for the first time a legal existence against the state. When, then, did a cause of action arise in favor of the claimant against the state? Obviously not until the legislative recognition. The language of the Act of 1886, by clear implication adopts the authority of the quarantine officials to contract for the services and materials in question and acknowledges the liability of the state therefor, and the claim in question then had its origin."

Claim not cognizable before any tribunal.-Lapse of time is never a bar to a claim against the state so long as there is no tribunal to which the claim may be presented for adjudication. On the contrary, such a claim may be allowed, although it would be barred as between citizens. People v. Miller, (1905) 181 N. Y. 439, 74 N. E. 477, affirming 85 App. Div. 145, 83 N. Y. S. 559; Cayuga County v. State, (1897) 153 N. Y. 279, 47 N. E. 288; Parmenter v. State, (1892) 135 N. Y. 154, 31 N. E. 1035; Buffalo v. State, (1906) 116 App. Div. 539, 101 N. Y. S. 595, affirmed, (1908) 191 N. Y. 534, 84 N. E. 1110. Thus, chapter 428, Laws of 1885, empowering the board of claims to determine and allow a certain claim of the county of Cayuga which would have been barred is valid inasmuch as prior to the passage of that act no tribunal existed before which the claim could have been prosecuted. Cayuga County v. State, (1897) 153 N. Y. 279, 47 N. E. 288.

Suspension of lapse of time. The presentation of a claim to the tribunal constituted by the state to examine and determine its merits is equivalent to the commencement of an action between citizens, and withdraws the claim from the operation of the statute of limitations. Coxe v. State, (1894) 144 N. Y. 396, 39 N. E. 400.

Illustrations of claims barred by lapse of time.- A proceeding by a county instituted in 1902, under chapter 515 of the Laws of 1901, to compel the state comptroller to credit it with moneys lost by reason of exemption from taxation of certain lands owned by railroads situated therein, would be barred, as between citizens, where it appears that the claim was recognized and directed to be paid in 1889 but was not sought to be enforced then or at any time thereafter prior to the commencement of the above-mentioned proceeding. Accordingly, that claim cannot be paid under the Constitution. People v. Miller, (1905) 181 N. Y. 439, 74 N. E. 477, affirming 85 App. Div. 145, 83 N. Y. S. 559. An action for the recovery of money paid by reason of an illegal or erroneous tax is regarded as an action for money had and received. To such an action as between citizens, the six years' statute of limitation applies. In re Hoople's, (1904) 179 N. Y. 308, 72 N. E. 229, reversing 93 App. Div. 486, 87 N. Y. S. 842; Matter of Buckingham, (1905) 106 App. Div. 13, 94 N. Y. S. 130. Wherefore, an application made in October, 1903, to vacate that part of an order entered November 29, 1895, assessing an illegal transfer tax which was paid on that day, and for an order directing the state comptroller to refund the amount of the tax, should be denied, more than six years having elapsed since the claim accrued. In re Hoople's, (1904) 179 N. Y. 308, 72 N. E. 229, reversing 93 App. Div. 486, 87 N. Y. S. 842. An act (ch. 244, Laws of 1886) is unconstitutional in attempting to confer on the board of claims jurisdiction to allow a claim for personal injuries suffered in the work of the state where it appears that the claim would have been barred by the general statute with respect to actions for personal injuries if it had arisen between citizens of the state. Gates v. State, (1891) 128 N. Y. 221, 28 N. E. 373. A claim against the state for damages occasioned in 1869 by the negligence of the state canal officers is barred hereunder where it was not prosecuted within the time allowed by statute for the prosecution of such claims between individuals. An attempt by the legislature to authorize the payment of that claim despite the fact that it was barred by lapse of time, would be unconstitutional. McDougall v. State, (1888) 109 N. Y. 73, 16 N. E. 78. Although a statute (ch. 407, Laws of 1901) allowing the court of claims to determine certain claims of a city against the state, provides that an award shall be made "notwithstanding the lapse of time since the accruing of such claims," only claims not outlawed by the passage of time can be allowed thereunder. Buffalo v. State, (1906) 116 App. Div. 539, 101 N. Y. S. 595, affirmed (1908) 191 N. Y. 534, 84 N. E. 1110.

Scope of proviso relative to claims presented within time allowed by law. The proviso exempting claims duly presented within the time allowed by law and prosecuted with due diligence thereafter, from the operation of the provision prohibiting the allowance of any claims against the state which would be barred as between citizens, applies only to claims existing at the time of the adoption of this section in 1874. It has no application to claims originating subsequent to that date. Coxe v. State, (1894) 144 N. Y. 396, 39 N. E. 400; O'Hara v. State, (1889) 112 N. Y. 146, 19 N. E. 659, 8 A. S. R. 726, 2 L. R. A. 603.

Application of proviso.— A claim presented to the legislature within the time allowed by law and vigorously prosecuted before the canal board, the board of audit, and the board of claims, is duly presented and is prosecuted with diligence within the meaning of this proviso and is not barred by lapse of time. Corkings v. State, (1885) 99 N. Y. 491, 2 N. E. 454, 3 N. E. 660. See also O'Hara v. State, (1889) 112 N. Y. 146, 19 N. E. 659, 8 A. S. R. 726, 2 L. R. A. 603.

The lands of the State, now owned or hereafter acquired, constituting the forest preserve as now fixed by law, shall be forever kept as wild forest lands. They shall not be leased, sold or exchanged, or be taken by any corporation, public or private, nor shall the timber thereon be sold, removed or destroyed. But the Legislature may by general laws provide for the use of not exceeding three per centum of such lands for the construction and maintenance of reservoirs for municipal water supply, for the canals of the State and to regulate the flow of streams. Such reservoirs shall be constructed, owned and controlled by the State, but such work shall not be undertaken until after the boundaries and high flow lines thereof shall have been accurately surveyed and fixed, and after public notice, hearing and determination that such lands are required for such public use. The expense of any such improvements shall be apportioned on the public and private property and municipalities benefited to the extent of the benefits received. Any such reservoir shall always be operated by the State and the Legislature shall provide for a charge upon the property and municipalities benefited for a reasonable return to the State upon the value of the rights and property of the State used and the services of the State rendered, which shall be fixed for terms of not exceeding ten years and be readjustable at the end of any term. Unsanitary conditions shall not be created or continued by any such public works. A violation of any of the provisions of this section may be restrained at the suit of the people or, with the consent of the Supreme Court in Appellate Division, on notice to the Attorney-General at the suit of any citizen.

Const. 1894, Art. VII, § 7; amended in 1913.

Compromise of action involving title of state to forest lands.— This section of the Constitution, effective January 1, 1895, reserves to the people the title to the lands and timber then or subsequently owned by them within the forest preserve, and forbids the legislature and each officer and department to dispose or in any manner deprive them of it. People v. Santa Clara Lumber Co., (1914) 213 N. Y. 61, 106 N. E. 927, reversing 161 App. Div. 905, 145 N. Y. S. 1138. See also People v. Kelsey, (1904) 180 N. Y. 24, 72 N. E. 524, reversing 96 App. Div. 148, 89 N. Y. S. 416. Hence, the forest, fish and game commissioner cannot, under the provisions of section 20 of chapter 220 of the Laws of 1897, as amended by chapter 135 of the Laws of 1898, stipulate in compromise of an action involving title to lands, that

upon conveyance to the state of such title and of title to other lands owned by them, the claimants could dispose of and remove the timber from the lands so conveyed. People v. Santa Clara Lumber Co., (1914) 213 N. Y. 61, 106 N. E. 927, reversing 161 App. Div. 905, 145 N. Y. S. 1138.

Applicability of section where state does not hold legal title to lands.— An act (ch. 122, Laws of 1898) providing for the acquisition of thirty thousand acres of forest lands by the state in behalf of Cornell University and for the conveyance of those lands after a period of thirty years to the state by the university, is not violative of this section in containing provisions permitting the university, during the thirty years of its possession, to sell the timber on the lands. Until the expiration of the thirty years of university ownership, the legal title does not become vested in the state; and the lands, until the lapse of that period, are not a part of the forest preserves. People v. Brooklyn Cooperage Co., (1907) 187 N. Y. 142, 79 N. E. 866, affirming 114 App. Div. 723, 100 N. Y. S. 19.

Timber in forest preserve as subject of larceny.- Trees standing upon the forest preserve are property within the meaning of the statute governing larceny. Accordingly, a person employed by the forest, fish and game commission to protect a portion of the forest preserve owned by the state, who cuts timber from the preserve and sells it to third parties, falsely stating that it is sold on behalf of the state, and who receives over $7,000 as his part of the proceeds, is properly convicted of grand larceny in the first degree. People v. Gaylord, (1910) 139 App. Div. 814, 124 N. Y. S. 517. In referring to this section of the Constitution, the court said: "It seems clear that by such constitutional provision it was not intended that the state might be despoiled of its property any more than any other citizen and that the larceny statute protects it (the state) as to its lands the same as any of its citizens. The state of New York has spent millions of dollars to acquire its forest preserve. It was purchased from private individuals, and when title vested in the state it had commercial value and all the attributes of property. It is inconceivable that the constitutional amendment or provision prohibiting the sale of such land has divested it of its property attribute."

Title passing on sale of confiscated timber.— Neither a fish and game protector and forester, nor the chief game protector of the state of New York, has any authority to sell confiscated timber and logs cut upon lands within the forest preserve. Therefore, if they assume to make such a sale, the purchaser will not acquire even such a title as will enable him to maintain an action for conversion against a person who takes possession of the logs and timber without right or authority. Pashley v. Bennett, (1905) 108 App. Div. 102, 95 N. Y. S. 384.

Measure of damages for injury to forest preserve by fire. As no different rule has been prescribed, the measure of damages to the forest preserve, resulting from fire, is the recognized measure of difference between the market value of the land, of which the timber was a part, immediately before, and its market value immediately after, the burning. "Such was the firmlyestablished rule when the constitutional provision was promulgated and adopted, and the people have not by constitution or statute prescribed any other. If in their judgment or intention their lands of the forest preserve have a value different from their market value, they have not declared the nature or measure of it. It may be that dead timber is useless and valueless for the purposes, within the intention of the state, of the forest preserve, but it has not enacted to that effect. While it may or may not be true that the impossibility of sale, arbitrarily imposed by the constitution, destroys the market value, the adoption by the state of that value, in the absence of the interdiction, as a measure of valuation by the state is not illogical or incongruous." People v. New York Cent., etc., R. Co., (1914) 213 N. Y. 136, 107 N. E. 55, reversing 155 App. Div. 699, 140 N. Y. S. 902.