49 N.Y.S. 230 | N.Y. App. Div. | 1898
Lead Opinion
.. The grounds of this appeal are that the statute is in violation of the provisions of section 18, article 3 of the Constitution, which provides that the Legislature shall not pass a private or local bill in any case for the “laying out, opening, altering, working or discontinuing roads, highways or alleys, or for draining swamps or other low lands.” There are other points raised, .but this seems to be the material question, and it is conceded on the part of. the respondents that, if this statute is a local measure, it is repugnant to the provisions of article 3, section 18, and, therefore, of no force and effect. Without going into the history of the act further than it may be gathered from the records, it appears that chapter 286 of the Laws of 1897 was passed on the 16th day of April, 1897, and was entitled, “An act to pz'ovide for the widening and impi’oving of highways in towns having a total population of eight thousand or more inhabitants, and containing an incorporated village having á total population of not less than eight thousand and not more than fifteen thousand inhabitants.” The act provides for two weeks’ published notice of intention to apply for the appointment of the commissioners provided- for, and on the twenty-second day of May, a little over one month fz-om the final passage of the bill, and alznost before it was printed and generally distzibuted, we find these petitionei’s frozn the town of New Rochelle in court, all the conditions complied with, asking for the appointment of three commissioners. The assumption is not unfair, then, that the act was passed at the request of these petitioners, and that it was designed for the special purpose of allowing them to do the things which they have done, and which they expect to do, in reference to a certain highway in
“It is not always easy,” says Judge Eabl, in delivering the opinion of the court in the case of The People ex rel. v. Newburgh etc., Plankroad Company (86 N. Y. 7), “ to determine what is a local act within the meaning of the constitutional provisions referred to. Acts have been passed nearly, if not quite every year since the Constitution of 1846, from the operation of which particular counties have been excepted, and yet it has never been decided, or, so far as I can discover, before claimed, that such acts were local. A local act is one operating only within a limited territory or specified locality. It could not be said with propriety that a territory comprising nearly the whole State was merely a place or locality. An act operating upon persons or property in a single city or county, or in two or three counties, would be local. But how far must its operation be extended before .it ceases to be local ? To determine this no definite rule can be laid down, but each case must be determined upon its own circumstances.”
If, then, a statute in general language is so drawn that it is out of the range of reasonable probabilities that it cannot be made to operate upon persons or property outside of a single locality, or utmost, in a very small number of localities within the State, it is a local law, and no amount of ingenuity in its drafting can be allowed to
To come within the provisions of' this statute, the petitioners must not only own land in a “ town having a total population of eight thousand or'more -inhabitants and containing an incorporated village having a total population of not less than eight thousand and not more than fifteen thousand inhabitants,” but they, must own this., land “adjoining or abutting ” on a highway “ which extends within the limits of such town and without the limits of such incorporated village for a distance of at least two and one-lialf miles,” and the portion to be improved must be “ wholly without the limits of such incorporated village.” In other words, any highway of less than two miles and a half in length between the boundaries of an incorporated village, containing at least 8,000 inhabitants, in a township of at least 8,000 inhabitants, and the boundaries of such township, could not be improved under the operation of this statute. The whole .operation of the statute is thus confined to the few townships in which there is a highway two and one-half miles long, outside of the limits of an incorporated village of at least 8,000 inhabitants, and in any event it cannot extend beyond the limits of the town in which it is put in operation, thus confining its operation to a very limited number of specified localities, and coming within the definition of
' In commenting upon a similar case arising under a like provision . in the Constitution of Pennsylvania, where the Legislature had enacted a statute in which it was provided that, in a county “ in which there shall be any city incorporated at the time of the passage of this act with a population exceeding eight thousand inhabitants, ' situate at a distance from the county seat of more than twenty-seven miles by the usually travelled public road,” the court, speaking through Justice Paxson (88 Pehn. St. 258) says: “ This is classification run mad. Why not say all counties named Crawford, with a population exceeding sixty thousand, that contain a city called Titus-ville, with a population of over eight thousand, and situated twenty-seven miles from the county seat ? Or, all counties with a population of over sixty thousand, watered by a certain river or bounded by a certain mountain. There can be no proper classification of cities or counties except by population. The moment we resort to ■geographical distinctions we enter the domain of special legislation, , for the reason that such classification operates upon certain cities hr counties to the perpetual exclusion of all others.”
Chapter 286 of the Laws of 1897 is not local because it excepts from its operation the county of Madison,, provided the act is uniform and general in its operation upon persons and property in the State in the localities to which it is supposed to apply (Ferguson v. Ross, 126 N. Y. 464); and the only importance to be attached to this exception is the evidence it bears upon the intent of the Legislature to limit its operation to Westchester county and the town of Hew. Rochelle. Madison county contains one of the very few incorporated villages at least closely approximating 8,000 in population, and is, perhaps, outside of the county of Westchester, the only co uiity in the State to which this statute could be made to apply, and it is apparent that this, rather than any consideration of public policy, was the motive for the exception. It "was- necessary to secure the approval of the Legislature to so frame the act, and to so limit the field of its opera
The order appealed from is, therefore, reversed, and the order appointing commissioners is vacated, with costs.
All concurred, except Bartlett, J., dissenting.
Concurrence Opinion
I concur in the opinion of Mr. Justice Woodward. But with the fear of The Matter of Church (92 N. Y. 1) before me, I suggest that the present case may be distinguished from the one cited. It is beyond dispute that in this character of statutes there must come a point when an enumeration of the various limitations of the application of the statute ceases to constitute classification, and becomes mere identification, for almost any object, whether it be a political division of the State, a geographical section of its territory, or even an individual citizen, can be identified by certain qualities that neither it nor he possesses in common with others of a class, as well as by name. Where the special attributes prescribed by the statute,
But if the statute is to be held a general one, then, in my judgment, it is obnoxious to the provision of the Constitution that requires that all city, town of village officers shall be elected by the electors of such cities, towns or villages, or appointed by such authority thereof as the Legislature shall designate. (§ 2, art. 10) Probably the laying out, widening and improvement of public highways is an administrative act of government rather than judicial. (I use the term judicial in the narrow sense of pertaining to the functions of the courts.) In this State, however, from the earliest times such questions- have been determined by commissioners appointed by the County Courts or by their predecessors, the Common Pleas, subject to review by the courts appointing them, and in certain cases by the Supreme Court on appeal. This practice has been so long continued that I concede it is within the power of the Legislature, at its option, to give the determination of the question whether such public improvements shall be made a judicial or an administrative aspect. In the present case, however, the determination of the commissioners appointed by the court seems final, and no power of review is given to the court. I think, therefore, that the commissioners are no more than administrative officers appointed by the court, instead of by the local authorities of the town. But be this as it may, it is certain that the physical construction and improvement of highways is a work that has always been discharged by, the town officers. By the present statute the power and duty of the town officers in these respects are taken away and vested in commissioners wlio are neither elected by the electors of the town nor appointed by its officers. The commissioners award the contract for the work, supervise its performance and avoid it if broken. The only power of the supervisor of the town is to sign such contract as he may be directed to by the commissioners. The town may be compelled to issue bonds to the
In Astor v. The Mayor (62 N. Y. 567) it was held that the authority given the Central Park commissioners to grade certain streets in the city of Mew York ■ adjacent, to or connecting with the park, was constitutional. As I understand the opinion, there was involved only the right to exercise power as to a particular improvement, an improvement which at the time the Legislature could itself have directed to be made. This power still resides in the Legislature, so far as city streets are concerned, but no longer exists as to country highways. But in the opinion there is to be found no support for the'proposition that the Legislature could transfer from municipal authorities their general powers over the streets to officials neither ■ elected nor appointed by the local officers. It seems to me that this statute must fall under the condemnation of one or other of the two sections of the Constitution. If it is a local act, it is bad because the Legislature cannot pass such acts with regard to highways; if general, it is bad because it deprives the town authorities of the control of their highways.
Dissenting Opinion
I feel constrained to dissent on the authority of The Matter of Church (92 N. Y. 1). Otherwise I should concur in the opinion of Mr. Justice Woodward.
Order appealed from reversed and order appointing commissioners vacated, with ten dollars costs and disbursements.