City of Rochester v. Gray

The judgment should be reversed and a new trial granted, with costs to the appellant to abide event.

The action was brought to restrain the commissioner of highways from doing work upon what he claimed was a highway of his town. The city claimed the highway had been legally discontinued and that the commissioner was attempting to reopen it. The highway was closed under the provision of chapter 1018, p. 2067, Laws 1895, authorizing the appointment by the Supreme Court of three commissioners to acquire for the use of the city of Rochester, the shore of Hemlock Lake, or so much thereof within 200 feet of the water line as they should determine was necessary to prevent the pollution of the water supply of the city. By section 2 of the act it was provided:

“If it shall be necessary for the purposes of this act, such commissioners may take any highway or portion of a highway within the limit's described in section 1 (200 feet of water line) but they shall reconstruct any such highway in a manner satisfactory to the highway commissioner of the town in which it is located, and so as not to materially interfere with the public travel, and may acquire the necessary land therefor, by agreement with the owners thereof, or if unable so to agree, by condemnation.”

The commissioners were duly appointed and entered upon the performance of their duties under the act. Among other things they determined pursuant to section 2 of the act that it was necessary to take the highway in question, which ran along the water’s edge. They therefore took the highway and purchased land further back from the shore, and reconstructed the highway thereon. They reconstructed the highway in a first-class manner, better than the one taken, and it was approved as to its manner of construction by the commissioner of highways, but he did not consent to the taking of the old highway or the construction of the new one. In fact, the commissioner proceeded in accordance with the terms of the act of 1895.

First. The question is whether the Legislature had power to authorize the change of highway witliout the consent of the commissioner of highways of the town, ,in view of section 18 of article 3 of the Constitution of the state, which among other things provided that the Legislature should not pass any private or local bill laying out, opening, altering, working, or discontinuing roads, highways or alleys, or for draining swamps or other' lowlands. The trial court held that the Act of 1895, in so far as it authorized the taking and reconstructing of the highway in question, was unconstitutional, and on that ground dismissed plaintiff’s complaint. I do not think the decision can be upheld upon the ground stated in the opinion of the trial court. Only one case was cited to sustain his view, and that seems not to afford much support, viz.: Swikehard v. Michels, 8 Misc. Rep. 568 , 29 N. Y. Supp. 777 , affirmed 81 Hun, 325 , 29 N.

In Matter of Gilroy, 43 App. Div. 359 , 60 N. Y. Supp. 200 , affirmed 164 N. Y. 576 , 58 N. E. 1087 , highways of considerable length were taken and new ones opened in their place in the construction of a reservoir. No claim was made that the act under which this was done was unconstitutional. Thes main question involved related to the maintenance of the new highways, whether it should be by the city of New York or the town in which they were located. The case above referred to—Swikehard v. Michels—involved the same constitutional provision as this case does, only it related to the draining of swamps and lowlands. The main purpose of the act there was the construction of a sewer in certain wards of the city of Rochester and the town of Gates, adjoining. That was necessary for the public health, and was a public purpose. The act was a local and private one within the words used in the Constitution, and was claimed therefore to be unconstitutional because it practically provided for the drainage of swamps and lowlands. The construction of the sewer would, in fact, drain swamps and lowlands. The opinion then stated that a local bill that has for its sole or main purpose the draining of swamps or lowlands, although required for the public health, might be unconstitutional (though this would be open to argument if necessary to deny it in this case), but where the construction of a sewer, required to preserve the public health, becomes necessary, the fact that more or less water is drawn from a low piece of ground does not render the act unconstitutional which provides for the construction of the sewer. The title of the act purported to provide for the construction of a sewer, which was clearly within the power of the Legislature, and the question was whether its real purpose was correctly stated in the title, or whether its real purpose was the drainage of the swamps and lowlands. It was apparent that the real purpose was correctly stated in the title of the act, and therefore it was constitutional, though, in effect, the sewer would drain swamps and lowlands. The . opinion did discuss the question' whether the court Would go beyond the language of the act to ascertain the real purpose

Second. The act is not in violation of section 16 of article. 3 of the Constitution in .embracing more than one subject not expressed in the title. It had. but one object; the changing of highways being merely incidental to the main purpose of the act. People ex rel. Stupp v. Kent, 83 App. Div. 554 , 557, 82 N. Y. Supp. 172 ; People ex rel. Brockport v. Sutphin, 166 N. Y. 163 , 59 N. E. 770 ; Economic P. & C. Co. v. Buffalo, 195 N. Y. 286 , 88 N. E. 389 . The latter case is clearly distinguishable from this.

Third. It is said that the Legislature had no power to authorize the taking of this highway for the purposes stated in.the act, because, it belonged to the people, and the statute violated the provision of the Constitution that no person should be deprived of his property without due process of law. Section 6 of article 1. The city of Rochester was owner of the fee of the lands -over which the highway taken passed. Upon the discontinuance of the highway, the city became entitled to the use and possession of the -land, and no one was therefore entitled to any damages. The town was.not because it had no interest as a town in the highway or. the land. The highway belonged to the state, and not to the town. People ex rel. v. St. Bd. Tax Com., 174 N. Y. 417 , 443, 67 N. E. 69 . The state held the highway in trust for the people at large. In People v. Kerr, 27 N. Y. 188 , 192, it was. said :

‘So far as the existing public rights in these streets are concerned, such as the right of passage and, travel over them as common highways, a little reflection will show that the Legislature has supreme control over them. When no private interests are involved or invaded, the Legislature may close a highway and relinquish altogether its use by the public, or it may regulate such use or restrict it to peculiar vehicles- or to the use of particular motive power. It may change one kind of public use into another so long as the property continues to be devoted to public use. What belongs to the public may be controlled and-disposed of any way which the public' agents may see fit."

This language was quoted in the Matter of Gilroy (above), and the court held that under this authority it was clear that the Legislature had the power to provide for the closing 'of -the old and the substitution of the new highway without imposing upon the city of New York, for whose benefit the change was made, the expense of main, taming the new highway. It has been held that- the Legislature; has

I do not think these objections to the validity of the act are well taken.

My conclusion is that the judgment should be reversed.

Judgment reversed and new trial ordered, with costs to appellant to abide the event. All concur.