66 N.Y. 413 | NY | 1876
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *415
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *416 There are two appeals by the Rochester Water Company in these proceedings; the one from an order appointing commissioners of appraisal, the other from an order confirming the appraisal by the commissioners of damages for lands taken by authority of law for a public use. The statutes under which the proceedings were taken did not *418 authorize the taking from the appellant any special corporate rights, privileges or franchises or any property or other thing essential to the exercise and enjoyment of the corporate powers and rights conferred by its charter. The power of the legislature of the State to deprive corporations of their franchises and take from them the property necessary to their enjoyment, in the exercise of the sovereign right of eminent domain, upon making compensation, is not disputed. But this must be done by special act of the legislature and under a power granted in express terms.
A corporation, either private or municipal, cannot, under a general power to take lands for a public use, take from another corporation having the like power lands or property held by it for a public purpose pursuant to its charter. (In re Boston Albany R.R. Co.,
The question next in order is, whether at the time these proceedings were instituted, in May, 1875, they were authorized by any statute then in force. The solution of this question depends upon the answer to another, to wit, whether section 23 of chapter 771 of the Laws of 1872, which authorized proceedings by the respondents to acquire title and other rights in and to lands, waters, etc., in the manner prescribed by the act authorizing the formation of railroad corporations and the acts amendatory thereof had or had not been repealed. The claim is that it was repealed by chapter 33 of the Laws of 1875. Section 1 of that act declares that section 23 of the act mentioned "is hereby amended so as to read as follows." Then follows a section as "section 23," entirely omitting every part of the original section and made up of entirely new matter, and providing merely for the acquisition of lands, easements, water rights, etc., owned by a corporation having the right of taking private property for public use. But the section, as incorporated, contemplates the continuance of the power to take lands and other rights upon an appraisal as prescribed by the statutes regulating the taking of lands by railroad corporations. It restricts the power of appointment of commissioners of appraisal, declares what rights shall be acquired in case commissioners shall be *421
appointed, and establishes the rule by which such commissioners of appraisal shall be governed in estimating the damages for lands and other rights belonging to corporations, and taken pursuant to the amendment. If section 23 of the Law of 1872 was intended to be, or was in fact, repealed and this substituted for it, these provisions would be meaningless, and the entire section substantially without practical effect. There would be no authority for a proceeding to take lands upon the appraisal of commissioners for the purposes named, or the appointment of commissioners of appraisal for any purpose. It is quite evident that the intent of the legislature was not to substitute the one section for the other, or to repeal the section as found in the act of 1872, but to add a new clause to it and to subject to its operation a new class of cases. The intent would have been carried out if the enactment by chapter 33 of 1875 referred to had amended the act of 1872 by adding a new clause containing the matter of the latter act to the section professedly amended, but, upon the theory of the appellant, really stricken out and repealed. The intent to continue the original section in force, with this new clause added, is made more apparent by reference to chapter 39 of the Laws of 1875, passed five days thereafter, which re-enacts section 23 of the act of 1872, with section 23 of chapter 33 of 1875 added to it. The amendment was accomplished in the same form by enacting that the original section should be "amended so as to read as follows," and then inserting the original section and the supplement as one section. The last act is challenged as violative of section 17, article 3, of the Constitution, so far as the provisions of the railroad acts regulating proceeding for the acquisition of lands for public use are made applicable, by a mere reference thereto, and without inserting the provisions in the act. If this objection is well taken, and we are not prepared to say that it is not, the validity of these proceedings depends upon the effect to be given to chapter 33 of the Laws of 1875. Ordinarily, and in the absence of any evidence of a legislative intent to the contrary, a substitution of one section for another *422
by an amendment in the form in which this amendment was accomplished, would work a repeal of the original section from the time of the amendment, and as affecting all cases thereafter arising. But when, from the language of the statute and of the amendment, a different intent is apparent, such effect will not be given to it; and where other acts of the legislature, passed at or about the same time, corroborate the evidence of intent, as gathered from the statutes under review, the duty of the courts is to give effect to the intent rather than to the literal terms of the act. The intent must not be conjectured, but must be apparent from all the statutes taken together, and consistent with the whole purpose and object as well of the original statute as of the amendment. This rule of interpretation is of frequent application, and is one of the most important and familiar canons of construction. It is not unfrequently necessary to resort to this rule of interpretation to prevent a miscarriage of the legislative intent and detriment to public interests. (People
v. Clute,
To hold that a repeal of this part of the act of 1872 was accomplished by the first act of 1875, would be to thwart the evident intent of the legislature, render the whole provision ineffectual for every purpose, and convict the legislature of enacting a law which was a nullity. The act should rather be construed so as to give it effect, especially as that can be done consistent with the purpose and object of the entire provision. The title of chapter 33 of the Laws of 1875, as "an act supplementary" to the act of 1872, is very persuasive evidence that it was not the intent to repeal any part of the act, or to substitute any other provisions in lieu of those contained in it, but, as its title declares, to supplement its provisions. The effect of the act was not, therefore, we conclude, to repeal section 23 of the act of 1872, but to add to it. It follows that these proceedings were properly instituted and the court had jurisdiction.
The objection is also taken, that these proceedings should *423 have been instituted in the name of the city of Rochester. The board of water commissioners were by the act authorized to make the application, and were the actors in the proceedings, and we see no reason to doubt that, as a board, they were authorized to take the proceedings upon their own motion, and as commissioners, without stating in terms that they acted for the city, or using the name of the corporation, although the title, when acquired, would be for the city of Rochester. The mere formal amendment of the petition and the other proceedings, stating them to be for and in behalf of the city, would be all that would be necessary to obviate this objection. But acting as they do under the statutes as a board of commissioners for the city of Rochester, and in the execution of a statutory trust, the law makes it a proceeding for and in behalf of the city, and all the property, rights and privileges that are acquired the law gives to the city and not to the commissioners. There is no valid objection to the form of the application or defect of parties to it.
The objection to the order confirming the appraisal is answered by the fact that the appraisers were not authorized to award any damages except for the strip of land actually taken, and that no other property and no other rights were involved in the proceedings. The appraisers, therefore, very properly refused to hear evidence as to any other injury, or to make any allowance for any diversion of water or the deterioration in value of any other property or privilege. These views lead to an affirmance of the orders without considering other and perhaps more serious questions that were raised and forcibly presented by the learned counsel for the appellant.
The orders must be affirmed.
All concur.
Orders affirmed.