100 Misc. 421 | N.Y. Sup. Ct. | 1917
This is an application for the appointment of commissioners of appraisal in proceedings taken by the city of Rochester to acquire certain lands in the town of Livonia, Livingston county, and in the town of Canadice, Ontario county.
There are many objections urged against the proceedings by the property owners who have appeared but they may all be grouped under the claims that the
(1) The claim that the legislature had no power to confer authority upon the city to acquire the lands in question is unfounded. The state has the power to acquire any lands necessary for public purposes and may delegate that power to a municipality. A city may be- authorized to acquire lands for municipal purposes not only within but without its boundaries. Matter of City of New York, 99 N. Y. 570. The charter of the city expressly confers authority upon the city to acquire by condemnation property outside the limits of the city as the purposes of the corporation'may require. City Charter, § 2; Laws of 1907, chap. 755, § 2; Matter of City of New York, 99 N. Y. 570.
(2) The fact that these lands border upon Hemlock lake and if acquired might prevent access to the lake except with the permission of the city does not affect the authority of the legislature. Hemlock lake is a navigable stream in fact but not in law. The land around the lake to the water's edge may be the subject of private ownership and as such may be acquired by the state or by any municipality upon which the state has conferred suitable power. Fulton Light, Heat & Power Co. v. State, 200 N. Y. 400. The courts have heretofore confirmed the authority of the city to draw water from Hemlock lake upon making just compensation therefor (Smith v. City of Rochester, 92 N. Y. 463), and the vesting of the right in the city to acquire lands around the lake is merely an exercise of the power of the. legislature to confer upon the city
(3) Assuming, however, that the legislature had the power to confer upon the city the authority to take these lands it is contended that the city charter violates article 3, section 16 of the state Constitution in that it embraces more than one subject which is not expressed, in the title. The charter of the city was passed under the caption “An act constituting the charter of the city of Rochester,” and under this title any provision may be incorporated which may be required to conf e'r upon the city authority to preserve the peace, good order and health of the city, to promote its growth and prosperity and to raise revenues for its government. Louisiana v. Pilsbury, 105 U. S. 289. These subjects would include provisions relating to the acquisition of lands outside of the boundaries of the city for municipal purposes and the regulation of the procedure therefor. The general proceedings for the condemnation of property might have been incorporated in the charter by reference but instead thereof special proceedings were provided. The latter course does not offend the Constitution since the proceedings relate to the acquisition of property for municipal purposes and affect the health, growth and prosperity of the city. Willis v. City of Rochester, 95 Misc. Rep. 686.
(4) The provision of the charter is attacked which provides that at least one of the commissioners of appraisal shall be a resident and freeholder .of the city. City Charter, § 438; Laws of 1907, chap: 755, § 438. It is claimed that this provision violates article 1, section 7 of the state Constitution which requires that the commissioners shall be appointed by a court of record. It is to be observed that the Con
(5) The claim is made that the provisions of the charter (City Charter, §§ 444, 446, as amd. by Laws of 1911, chap. 384) deny to the property owners the equal protection of the laws under article 14, section 1 of the federal Constitution in that the provisions of the charter discriminate against the property owners with reference to the right of appeal. The city is given the right to appeal where the report of the commissioners is disapproved, that is, where the city refuses to confirm the report. This right was undoubtedly given to the city to provide for cases where in the judgment of the city the awards were excessive or the proceedings were irregular in some respect but where there are several parcels taken it may occur that the awards are excessive as to some but insufficient as to others. However, on the hearing of an appeal the court is empowered to confirm or annul the award as “ to any party or parties or to all of them ” and may direct a rehearing before the same or new commissioners. City Charter, § 447; Laws of 1907, chap. 755, § 447, as amd. by Laws of 1911, chap. 384. The property owner whose award may be insufficient is thus protected on appeal taken by the city. If no appeal is taken the disapproval would act as a rejection of the report and a discontinuance and abandonment of the' proceedings. Where the report is confirmed by the common council an appeal is given to the property owner. City Charter, § 446. It is assumed that where the report is confirmed the awards are satisfactory to the city but they may be deemed insufficient by the property owner and hence in such a case a right to appeal has been given to the property owner. On this appeal the city will have a right to be heard just as the property owner
(6) The property owners insist that the provision relating to the abandonment of the proceedings (City Charter, § 444, as amd. by Laws of 1911, chap. 384) is unconstitutional in that it may operate to deprive property owners of their property without due process of law. It is urged that it permits the city to reject the report of the commissioners and renew the proceedings after the expiration of one year and that the repetition of this course might result in taking property without just compensation. Municipalities must have the right to discontinue and abandon public improvements and all property is held subject to this right. It would be against public policy to hold that having once begun its proceedings a municipality must carry them through to a finality. Still a city can not be permitted to abandon its proceedings arbitrarily and renew them at will. Schneider v. City of Rochester, 160 N. Y. 165. This the charter does not authorize. It provides that when the report comes before the common council it must assign a time for hearing objections to the confirmation and at the time assigned must hear the allegations of all persons interested who appear and may take proof in relation to it from time to time. City Charter, § 444, as amd. by Laws of 1911, chap. 384. Under this procedure as a prerequisite, it may confirm or refuse to confirm the report or it may reject the report in which case the proceedings shall be considered abandoned and discontinued. Thus the city can not arbitrarily discon
(7) It is urged as an objection against the validity of the statute that the confirmation or disapproval of the report is vested in the common council instead of in the courts and that the city is thus made the judge of its own proceedings. This is not a valid objection.
(8) The remaining objections of the property owners relate to the regularity of the proceedings taken by the city. The claim that there is no necessity for the land sought to be taken is not open to quest!on. Matter of Fowler, 53 N. Y. 60; Matter of City of Buffalo, 189 id. 163, 169; Matter of Townsend, 39 id. 171;
(9) The proceedings were not required to be approved by the conservation commission. They do not involve the taking of new or additional sources of water supply. Queens County Water Co. v. O’Brien, 131 App. Div. 91.
(10) The claim that the charter provision "with respect to negotiations has not been complied with is not well founded. These provisions do not contemplate the approval of the price to be paid for the property by the board of estimate and apportionment in advance of the negotiations. City Charter, § 436; Laws of 1907, chap. 755, § 436. The language employed is a limitation upon the power of the commissioner of public works confining him to prices that may be approved by the board of estimate and apportionment. Matter of City of Rochester, 82 Misc. Rep. 598, 607. The intention of the section is that before any agreement made by the commissioner shall be binding the price to be paid shall be approved by the board of estimate and apportionment. The proceedings sufficiently show a' compliance with the charter relating to negotiations. It was not necessary that an offer should be made. It is sufficient if the price asked by the property owners is unsatisfactory to the city. Matter of Prospect Park & C. I. R. R. Co., 67 N. Y. 371, 377.
(12) Since the adoption of the original ordinance however and while this application was pending the city-corrected the defects in the descriptions of the property under the authority of section 438 of the city charter by adopting an amendatory ordinance designed to obviate the objections made in this respect. The amendatory ordinance does not purport to increase or decrease the property described in the original ordinance but seeks to make the descriptions conf orm to the map filed by the city and thus carry out the inten
(13) In reviewing the objections raised to the proceedings the court has had in mind the rule to be followed where legislation is attacked as unconstitutional that every presumption is in favor of the validity of the act and that it is to be upheld unless there is a substantial departure from the organic law (People ex rel. City of Rochester v. Briggs, 50 N. Y. 553, 558) and that where there is room for two constructions of a statute the court must in deference to the legislature of the state assume that it did not overlook the provisions of the Constitution and that it designed the act to take effect. Matter of New York & Long Island B. Co., 148 N. Y. 540, 551. With the propriety or wisdom of the legislation the court has nothing to do, that power having been committed by the Constitution to the legislative department of the government.
The objections made to the proceedings herein are overruled and commissioners of appraisal will be appointed in accordance herewith.
.Ordered accordingly.