Queens Terminal Co. v. Schmuck , 132 N.Y.S. 159 ( 1911 )

Burr, J.:

The appeal from the order confirming the report of the commissioners of appraisal brings up for review the judgment which appointed them. The right of petitioner to maintain these proceedings lies at the threshold thereof, and may be thus reviewed. (Code Civ. Proc. § 3375; Matter of Niagara Falls & Whirlpool R. Co., 108 N. Y. 375.) Attack upon such right is based upon two grounds: First, that statutory authority does not exist to exercise the right of eminent domain for the purpose for which in this instance petitioner seeks to deprive defendants of then lands, and, second, that the act under which it obtains its corporate life violates constitutional provisions. Petitioner was incorporated by a special act, entitled “An Act to incorporate the Tidal Water Way Company and to define its rights, powers and privileges.” (Laws of 1894, chap. 719.) Subsequently, upon petition to the Supreme Court, an order was entered changing its name to the “ Queens Terminal Company.” The first purpose of its corporate being expressed in said act is “to construct within the limits of the first senate district as now established canals of. such length, width and depth, as á majority of the board of directors may determine, connecting the tide waters adjacent to or within the limits of said first senate district.” In addition, either as incidental to.the power already conferred or by way of a grant of additional power, the act provides that the company shall have “power to lease or sell real estate acquired by it; * * ■* to take and- hold such voluntary grant of real estate and other property as shall be made to it to aid in the construction, maintenance and accommodation of its canals, locks, basins, fixtures, buildings, docks, wharves and appurtenances, and to acquire by purchase or condemnation such real estate and property as may be necessary therefor, including land on either side of said canals to a distance of not exceeding one thousand feet.” A still later clause in said act includes among its buildings “ warehouses.” If the particular scheme in which petitioner is now. engaged is not a public enterprise within the true meaning of the term, or if it is not seeking to acquire defendants’ land for any purpose for which the Legislature gave it the power of condemnation, petitioner must fail. The determination of these questions is a judicial one belonging to the courts. The fact that the act declares in words that it is a public act, or even- that the taking is for a public use, is not conclusive. (Matter of Townsend, 39 N. Y. 171, 174; Matter of Deansville Cemetery Association, 66 id. 569; Matter of Eureka Basin W. & M. Co., 96 id. 42; Matter of Niagara Falls & Whirlpool R. Co., supra; Matter of Split Rock Cable Road Co., 128 N. Y. 408.) Even if the petitioner intends to devote the land acquired to some public use, this alone would not bp sufficient. It must be the specific public use, or a part thereof, for which it has received the power to condemn. (Erie R. R. Co. v. Steward, 61 App. Div. 480; affd., 170 N. Y. 172.) It appears that the town of Hempstead in 1907 conveyed to the corporation known as the Estates of Long Beach. certain lands to be used for its private enterprise, and that in connection with the development of its property the Estates undertook to construct a waterway for the purpose of connecting Broad Channel and Dutch Gunning Lead, which are tide waters. The land necessary for this purpose did not belong to the Estates Company, and it is conceded that it had no power to acquire the same in invitum. It, therefore, made a contract with petitioner to do that which the Estates had previously undertaken to do for its own private purpose, but which, .lacking the right to exercise the power of eminent domain,- it was unable to do. If this is not perfectly clear from the evidence adduced in this case, it is perhaps due to the fact that testimony competent to establish this fact was erroneously excluded. If the act referred to can be sustained as one conferring such power for a public use, it must be upon the ground that the chief corporate purpose of its creation is to improve the waterways within the territory described by the construction of canals which shall be public waterways, and that all other powers in the act expressed are incidental thereto. But by the express provisions of the contract between the petitioner and the Estates Company, the former completely divests itself of any power over the canal to be constructed as soon as it is completed, and is relieved of any duty respecting the same. The grant of the power of eminent domain carries with it a public duty. “ The delegation by the Legislature of its power of eminent domain to railroad corporations is justified, as a constitutional measure, upon the ground that, their franchises are for a public use and that in accommodating the public, by furnishing transportation for passengers and freight, they perform a public duty and are invested with a quasi pub-lie character.” (Erie R. R. Co. v. Steward, 170 N. Y. 178, supra.) The same rule must obtain with a company such as a canal company, whose method of transportation is by water instead of by land. It is contrary to the principle underlying the delegation of this legislative power to permit a corporation to exercise the same to accomplish a result which by private contract it is bound to abandon the moment the result is attained, unless, to say the least, the other party to the contract is not only authorized but bound to maintain the completed work as a public use, which the Estates Company is not. It is true that this company has agreed with the town of Hempstead that this, waterway when completed shall become the property of the town, and subject to. its municipal jurisdiction, the same as other like town property. It is also true that petitioner agreed with the Estates Company that upon the completion of said, waterway it would immediately convey, transfer and surrender the same t<j> the town of Hempstead, with all appurtenances thereto, the same to be thereafter held and used by said town of Hempstead and its inhabitants, and the public generally, forever, according to the true intent and meaning of said town contract. But the town has nowhere agreed to maintain this waterway for a public use, and we cannot find, nor has our attention been called to any act by which the town has any statutory duty imposed upon it either to construct or maintain canals, nor is it given the power of eminent domain to enable it to acquire the land necessary for the construction thereof. To state the case most favorably to the petitioner, it. is seeking to condemn land to. enable it to perform a contract which it has made with a purely private corporation in order to enable the latter in turn to perform a contract which it has made with a municipal corporation to convey' to it the property thus acquired. But this property the municipal corporation has no power itself to acquire, in the first instance, and when acquired it is under no obligation to maintain it for a public use. The situation is not analogous, to that of a railroad corporation which has leased its lines to a similar corporation. A lessor public service corporation may be authorized to acquire land for the benefit of its lessee. (Kip v. New York & Harlem R. R. Co., 67 N. Y. 227; Matter of New York, L. & W. R. R. Co., 99 id. 12.) But the foundation for this authority is that “by its lease the lessor company in no respect escapes from or lessens its corporate duty to the State, but is continuing the performance of that duty through the agency of its lessee, and may at any time, through the failure of the latter to perform its covenant obligations or by its absolute loss of corporate life and existence, become re-possessed of its line and property and bound to operate it for itself. ’’ (Matter of New York, L. & W. R. R. Co., supra.) In this case, after it has once parted with the property here sought to be acquired pursuant to its contract, petitioner can never become repossessed of the same, no matter what the fault or delinquency of its transferee. But it also appears that in addition to the avowed purpose of acquiring defendants’ land for the digging of this canal, two other acknowledged purposes exist, one, to take the material thus obtained and make use of it to fill up the adjoining lowland of the Estates Company, thus making it available property, and the other, to construct upon the strip of land not exceeding 1,000 feet in width, upon the banks of the canal which it claims the right to acquire, bulkheads, wharves and buildings. The' use to which these buildings ' are to be put is not disclosed. Even the agreements above- referred to, between the town, the Estates Company and petitioner, relate only to waterways and not bulkheads, wharves and buildings. We conclude, therefore, that statutory authority does not exist for the exercise by petitioner of the power of eminent domain for the purposes here disclosed. Further objection to the right to maintain these proceedings is made upon the ground, first, that the act above cited under which the Tidal Water Way Company obtained its corporate life was a private act, embracing more than one subject which is not expressed in its title, contrary to the express provisions of section 16 of article 3 of the State Constitution; and, second, that the power conferred upon it to exercise the right of eminent domain is not limited to the exercise :of such power for a public use, which is contrary to the implied prohibition found in section 6 of article 1 of the same instrument. (Embury v. Conner, 3 N. Y. 511; Powers v. Bergen, 6 id. 358.) That the act is a private act cannot be disputed. (Economic Power & Construction Co. v. City of Buffalo, 195 N. Y. 286.) Does it relate to more than one subject % The limit of the rule in this regard has been thus defined: “When the subject is expressed, all matters fairly and reasonably connected with it, and all measures which will or may facilitate its accomplishment, are proper to be incorporated in the act and are germane to the title.” (Economic Power & Construction Co. v. City of Buffalo, supra.) The subject expressed in the title of the act is a water way company. . It is difficult to see how the erection of “ buildings, wharves and docks ” is any part of the ordinary function of. a water way or canal company or how “ warehouses ” are necessary to the transaction of its business. But if some of these purposes possibly might be regarded as incidental to the primary purpose, the acquisition of a strip of land not exceeding 1,000 feet in width on either, side of the canal, upon which buildings and warehouses may be erected, certainly cannot be, since under another provision of the act authorizing the company to “lease or sell real estate acquired by it ” these may be disposed of to private individuals or corporations. This act is also subject; to condemnation because' it may authorize the taking of private property for a private use, even though petitioner continues to be the owner thereof. (Matter of Eureka Basin W. & M. Co., 96 N. Y. 42; Matter of Niagara Falls & Whirlpool R. Co., 108 id. 375; Matter of Split Rock Cable Road Co., 128 id. 408.) In the Eureka Basin Case (supra) the court, speaking through Rapallo, J., said: “ The taking of private property for private purposes cannot be authorized even by legislative act, and the fact that the use to which, the .property is intended to be put, or the structure intended to be built thereon, will tend incidentally to benefit the public by affording additional accommodations for .business, commerce or manufactures, is not sufficient to bring the case within the operation of the right of eminent domain, so long as the structures are to remain under private ownership and control and no right to their use or to direct their management is conferred upon the public.” In this case the act provides that’the corporation shall “regulate and fix'the time and manner in which vessels, passengers and property shall pass through such canals and the toll to be paid therefor. ” If this might be termed an .authority to the public generally to make use of the canals constructed by it upon complying with the regulations and paying the toll charges, one searches the act in vain for any provision therein authorizing the public to make use of its buildings and warehouses upon any terms or. conditions whatever, even while the corporation continues to be the owner and in control thereof. “A possible limited use by a few, and not then as a right but by way of permission or favor, is not sufficient to authorize the taking of private property against the will of the owner.” (Matter of Split Rock Cable Road Co., supra.) So a possible limited right of a part of the property to be acquired is not sufficient if the remainder of the property remains under the absolute control of the condemning corporation or its grantee, freed from any right to the public to make use of the same except by its favor or consent. The test of the constitutionality of a legislative act is found, not. in what has been, but what may be done under it. Nor is it possible in this case to separate those portions of this act which are in conflict with constitutional provisions from those which might, if existing independently, escape such condemnation, permitting the latter to survive. The act not only defines the powers of petitioner but gives to it corporate life. The Legislature might never have been willing to grant it existence if it had understood that it could not possess the powers which we have determined to be invalid. In this view of the case it becomes unnecessary to consider the sufficiency of the award of the commissioners.

The judgment appointing these commissioners and the order confirming their report should be reversed, with costs; and as the proceedings cannot be maintained, the same should be dismissed, with costs.

Thomas, J., concurred; Carr, J., concurred in separate opinion; Rich, J., read for affirmance, with whom Hirschberg, J., concurred.