The opinion
Dwight, J.,
(dissenting.) The action was brought under the provisions of chapter 205, Laws 1887, and the principal question here discussed is that of the constitutionality of that act of the legislature. The plaintiff is a corporation located at Canton, in the state of Ohio, and engaged in the manufacture and erection of wrought-iron bridges. The defendant is a town in the county of Wyoming. In July, 1884, the town board of Attica, upon inspection, condemned the existing bridge, by which a highway of the town was carried over the Tonawanda creek, as unsafe for travel; and by resolution authorized the commissioner of highways of the town, one George D. Miller, to procure the construction of a new iron bridge, in place of the one so condemned, at the expense of the town. In pursuance of such resolution the commissioner on August 7, 1884, entered into a contract with the plaintiff by which the latter was to furnish the materials for, and construct and erect the superstructure of, such bridge, according to a plan and specifications annexed to and made a part of the contract; the work to be completed on or before a day named, at the price of $3,975, to be paid on the completion of the bridge ready for travel. Subsequently, by a further agreement between the commissioner and the plaintiff, the time for the completion of the bridge was extended to include the month of February, 1885; and it was also agreed that the plaintiff should remove the old bridge, the actual expense of such removal to be paid by the town. The bridge was completed in February, 1885, and was accepted by the commissioner on behalf of the town, and has ever since been used as a part of its highways, gn the 21st day of that month the account of the commissioner for the moneys so agreed to be paid to the plaintiff for the removal of the old bridge and the construction of the new one was audited by the town board at the sum of $4,064.61. At the annual town meeting, held February 22, 1885, the electors of the town voted to authorize the supervisor to raise the amount so audited, by procuring the same to be included in the tax levy of the town, or to arrange for an extension of the time of such payment; and, in that case, to give to the plaintiff the obligation of the town to secure such payment, with interest. A new commissioner of highways was elected at the same annual town meeting. On demand, he refused payment of the amounts so audited-,as due to the plaintiff, and on the 3d day of October, 1886, an action in this court was commenced by the plaintiff against him, as such commissioner, to recover such amount. In that action judgment was finally rendered, dismissing the plaintiff’s complaint on the ground that Miller, the commissioner of highways, had no authority to-make the contract mentioned,.and *363 that such contract was not binding upon his successor, the defendant in that action. Thereafter, on the 25th of April, 1887, the legislature passed the act in question, which is chapter 205 of the Laws of that year. The title of the act is as follows: “ An act to legalize the acts and proceedings of the town board, and the town board of auditors of the town of Attica, Wyoming county, in relation to the erection of a certain iron bridge over the Tonawanda creek, on Main street, in the village of Attica, in said town, and the acts and proceedings of the annual town meeting of said town, held on the twenty-second day of February, 1885, in relation to said bridge, and the acts and proceedings of George D. Miller as highway commissioner of said town, in relation to said bridge. ” The principal objection made to the act is that it violates the provisions of section 16 of article 3 of the constitution of the state, viz.: “lío private or local bill * * * shall embrace more than one subject, and that shall be expressed in the title. ”
A reading of the act shows that sections 1, 2, and 3, and the first clause of section 4, conform, almost verbally, to the several divisions of the title. They purport, successively, to legalize all the acts in relation to the bridge— First, of the town board; second, of the town auditors; third, of the town meeting, (the electors of the town;) and, fourth, of George D.Miller, as highway commissioner of the town. The last clause of section 4 is a statement of a purpose of the foregoing provisions in the following words: “For the purpose only of enabling the Wrought-Iron Bridge Company of Canton, Ohio, to recover from said town the value of such bridge, cost of removal, and interest, as hereinafter specified in the fifth section of this act.” And section 5 thereupon proceeds to provide that nothing in the act contained should be construed to require the town to pay the amount audited by the town board for the contract price of the new bridge, or for taking down the old one; but that the company which did the work may bring and maintain an action to recover “a fair and reasonable compensation for the erection of the said bridge, and for taking down the old bridge, with interest on the amount found to be such compensation from the time the said bridge shall be found to have been completed and accepted by the officers of the said town.” The section then goes on to provide for the collection of the judgment to be recovered in said action by the usual methods of taxation. This is the whole of the act. It is undoubtedly both a private and a local bill. It seems to embrace but one subject, which might be described, in general terms, as the removal of legal obstructions in the way of the collection of a debt due from the defendant to the plaintiff. The matters specified in the title are steps or details of the process for the accomplishment of that purpose, and in this respect the title is not open to the objection that it does not sufficiently express the subject embraced in the bill. Hor-is it to be objected to the title that it does not express in general terms the result to be effected by those provisions of the bill which are specified in the title. That result is a consequence or corollary of the provisions mentioned. All the acts of the town board, the auditing board, the town meeting, and the commissioner of the highways, (in respect to the building of this bridge,) leading up to and including the contract with the plaintiff, being legalized and validated, it follows of necessity that the plaintiff may maintain an action on that contract, and recover what is its due. In the iaws frequently passed by the legislature legalizing the official acts of town officers, notably of justices of the peace, which lacked validity by reason of failure of the officers to qualify, or for other reasons, it has never been thought necessary to specify, either in the title or in the body of the bill, the particular acts legalized, or any of the consequences of such legalization. I have no doubt that the title of the bill in question was sufficiently comprehensive and explicit to satisfy the requirement of the provision of the constitution above quoted, if the bill had gone no further than to legalize the acts of the several *364 boards and officials mentioned in the title, and to declare the legal and logical consequences of legalizing those acts. But unfortunately this bill goes outside of the limits thus indicated, and in its last two sections undertakes to give to its earlier provisions an effect obviously different from, but opposed to, that which belongs to those provisions, and to their summary contained in the title of the bill. The legal effect of the first three and the first part of the fourth sections was to give life and validity to the contract between the highway commissioner and the plaintiff, and to entitle both parties to the enforcement of that contract according to its terms. The contract fixed the price to be paid for the new bridge at $3,975, and limited the compensation for removing the old bridge to the actual expenses incurred in doing that work. The provisions of the last clause of the fourth section and those of section 5 undertake to abrogate the contract in respect to the price to be paid for the work, and to substitute a quantum meruit for the contract price. The result would be that if, in the action contemplated by the bill, the plaintiff should succeed in establishing the fact that the new bridge was reasonably worth double the price agreed to be paid, it would be entitled to recover the double price; and, on the other hand, if the proof showed that it was worth only one-half the price named in the contract, the plaintiff’s recovery would be limited accordingly. Such a result as this is not expressed or suggested by the title of the bill, but is plainly at variance with the intent and purpose indicated thereby. In the case of In Re City of New York, 99 N. Y. 569 , 1 Finch, J., pronounces the most valuable test of conformity to the requirements of the constitution, in the title of such a bill, to be the inquiry whether the title is so framed as to be deceptive and misleading as to the contents and purport of the bill; and he adds: “ Where one reading a proposed bill, with the title in his mind, comes upon provisions which take him by surprise, which he could not have reasonably anticipated, and so both citizen and legislator are misled and thrown off their guard, it is our duty to declare the condemnation of the constitution.” It seems clear that the title to the bill in question must be condemned under the application of the test proposed. Hot only is the result declared by the later provisions of the bill not included in the statement of the title, but it is positively excluded thereby. As the bill stands it presents the anomaly of a legislative fiat giving life and binding force to a contract originally invalid, and at the same time abrogating that contract in one of its most important provisions. If this attempt at legislation escapes the condemnation of the constitution of the United States, as a law impairing the obligation of a contract, it is only because the validation of the contract and the impairment of its obligation are sought to be accomplished by one and the same legislative act. It seems quite probable that the bill, as originally framed, contained only the provisions of sections 1, 2, and 3, and the first part of section 4. To such a bill the present title would have been appropriate. The contract would-have been validated, and the just and commendable purpose of enabling the defendant to pay for what it has received from the plaintiff would have been attained. If the later provisions were added for the purpose of conciliating opposition to so just a measure, it is greatly to be regretted that the title of the bill was not modified to meet the change in its provisions. But no consideration of the desirability of granting the proposed relief, or of the unreasonableness of the opposition to the claim of the plaintiff, can justify the court in lending its sanction to a clear violation of a mandate of the constitution. For the reasons stated I reluctantly conclude that this judgment should be reversed; and since, if my conclusion is correct, no change of proof can obviate the objection to the action, judgment should be directed dismissing the plaintiff’s complaint. 1'n that case *365 the good citizens of Attica who desire to see justice done to the plaintiff ¿n -y again invoke the power of the legislature to enable them to accomplish that object.
2 N. E. Rep. 648.