In re City of New York — 140 A.D. 238

Majority

p. 238

In the Matter of the Application of The City of New York, Acting by and through the Commissioner of Docks, Respondent, Relative to Acquiring Right and Title to and Possession of Certain Uplands, etc., at and near the Foot of Broadway, in the Borough of Brooklyn, in the City of New York, for Ferry Purposes, Pursuant to the Provisions of Section 824a of the Greater New York Charter, as Amended by Chapter 331 of the Laws of 1909. New York Terminal Company, Appellant.

Second Department,

October 20, 1910.

Headnote

Eminent domain — condemnation of lands, city of New York — section 824a of charter not unconstitutional — statutory construction — constitutionality presumed.

Section 824a of the Greater New York charter, as amended by chapter 331 of the Laws of 1909, giving discretionary powers to the commissioner of docks with the approval of the commissioners of the sinking fund to condemn lands for public purposes within certain boundaries, which land is owned solely by the New York Terminal Company, is not unconstitutional on the theory that the land vested in the city perforce of the statute on the day it took effect without providing for immediate payment so that the owner was deprived of interest from that time. This, because the title did not vest in the city on the passage of the act, but the commissioner was merely authorized to acquire the same in his discretion by private sale or by condemnation proceedings.

Such act does not take property, but provides for the condemnation thereof for public purposes and merely changes the method of procedure.

An act of the Legislature is presumed to be in harmony with the Constitution; it is only when it is made to appear clearly that this presumption is not warranted that the courts will interfere.

Appeal by the New York Terminal Company' from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 2d day of August, 1910, granting a petition of the city of New York for the appointment of commissioners of estimate in a proceeding to acquire lands. >

G. Caspar Niles (John Delahunty, John J. Kirby ¡and William U. Blymyer with him on the brief], for the appellant.

Theodore Connoly [Charles D. Olendorf and George M. Curtis, Jr., with him on the brief], for the petitioner, respondent.

The appellant, the New York Terminal Company, challenges the constitutionality of section 824a of the Greater New York charter (Laws of 1901, chap. 466, added by Laws of 1907, chap. 450), as amended by chapter 331 of the Laws of 1909, the only specification being that the effect of the statute “ would have been to have taken specific property from this claimant on the 11th day of May, 1909, without providing for the payment therefor at the time of so taking, or of payment therefor with interest from the time of so taking in contravention of sections 6 and 7 of Article First of the Constitution of the State of New York.”

The theory of the appellant seems to be that under the territorial limitation of the statute the only property involved is that owned by the appellant, and that the statute, by authorizing the taking, in effect took the property upon the statute going into effect, and that just compensation required the payment of the value as of that date. The difficulty with the theory is that the statute does not take the property ; it simply gives a discretionary power to the commissioner of docks, with the approval of the commissioners of the sinking fund, to acquire by purchase or condemnation the property located at a given point. It took nothing from the New York Terminal Company; that .corporation had just the same property rights on and after the lltli day of May, 1909, that it had before that day ; the property was not depreciated because the dock commissioner was authorized to purchase the same in his discretion either at private sale or by condemnation proceedings. In fact, the very act of the Legislature complained of had a tendency to give value to the property at a price which should constitute just compensation, and, in the absence of some very special circumstances, showing conclusively that the property had been depreciated, the appellant would have very little standing to raise the question. The property has always been held subject to the power of the State to take the same under its power of eminent domain, and its situation is not changed because the Legislature elected in a particular instance to make this power depend upon the discretion of the dock commissioner instead of the municipal legislative body or some other board or officer.

It is a well-settled principle of constitutional law that the action

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of the Legislature is presumed to have been taken in harmony with the Constitution, and it is only when it is made to clearly appear that this presumption is not warranted that the courts interfere. The Legislature of the State has all powers of legislation which have not been taken away, and our attention is not called to any provision which denies to the Legislature the power to invest a dock commissioner with the discretionary power to determine whether he will purchase or take by condemnation a particular piece of property, and this is all the legislation here under consideration seeks to do. If it is taken under the power of eminent domain, the Constitution provides that just compensation shall be paid, and the appellant has full opportunity to go into the question of what that compensation is, but it can hope for but small success in questioning the power of the Legislature to enact the statute here under consideration. The act does not take property; it only provides, what is already the law,, that the appellant’s property may be taken for public purposes under the power of eminent domain, and merely the method of procedure is changed.

The order appealed from should be affirmed.

Thomas, Rich and Carr, JJ., concurred; Burr, J., not voting.

Order affirmed, with ten dollars costs and disbursements.