Wells v. City of Buffalo , 21 N.Y. Sup. Ct. 438 ( 1878 )

Mullin, P. J.:

By the charter of the city of Buffalo the common council were authorized to grade and pave the streets of the city, and to assess the property benefited thereby to pay the expense.

The common council did, by ordinance, direct the improvement of Clinton street, in said city, and assessed the expense on the property on said street. Some of the owners commenced an action in the Supreme Court, to set aside said assessment, as not made in conformity to the charter, and it resulted in a judgment annulling the assessment.

In the meantime the legislature passed a law (chap. 369 of the Laws of 1875), empowering the common council to reassess the same, and it was reassessed, and this action is brought to set the= reassessment aside on the ground that the law of 1875 is void under section 17 of chapter 3 of the Constitution, which declares that no act shall be passed, which shall provide that any existing law, or any part thereof, shall be made or deemed a part thereof,, or which shall be applicable, except by inserting it in such act: The Supreme Court held the amended act valid, and dismissed the complaint. I am in favor of affirming the judgment.

The convention never could have intended that in an act amending a prior one, the whole of the latter should be copied into it. This provision in the Constitution will render it almost, if not altogether, an impossibility to frame a law, in which another is referred to, and escape the Constitution and prohibition, unless the former law is copied into it verbatim et literatim. If it is to receive such a construction, the Session Laws, already of alarming proportions, will become vastly larger, much more expensive, and, if possible, more difficult to interpret and understand.

The section referred to should only be applied when'in a subsequent statute another act is referred to, not to amend it, but to give effect to the provisions of the new. In other words, the new act must, by its express terms, provide that an existing law shall be made or deemed a part of it. This is not done when the now act merely amends the formei-.

The judgment should be affirmed, with costs.

Talcott and Smith, JJ., concurred.

Judgment affirmed with costs.