In the Matter of the Petition of JOHN B. TUTHILL et al. for the Appointment of Commissioners to Drain Certain Wet and Low Lands in the Towns of Chester and Blooming Grove in Orange County. JOHN B. TUTHILL et al., Appellants; RESTCOME P. CONKLIN, et al., Respondents.
Court of Appeals of the State of New York
May 15, 1900
163 N.Y. 133
Statement of case.
Matter of Tuthill, 36 App. Div. 492, affirmed.
(Argued March 26, 1900; decided May 15, 1900.)
APPEAL from an order and judgment of the Appellate Division of the Supreme Court in the second judicial department, entered January 30, 1899, reversing certain orders and judgments of the Orange County Court, entered in a special proceeding for the drainage of agricultural lands, and dismissing the proceeding.
The nature of the proceeding and the facts, so far as material, are stated in the opinion.
John G. Milburn and F. V. Sanford for appellants. The Drainage Act of 1895 is authorized by the Constitution of the state. (
Henry Bacon and Joseph Merritt for respondents. The amendment to the Constitution and the statute authorize the taking of private property for a use not public, but strictly private, by the exercise of the right of eminent
GRAY, J. This was a proceeding instituted by the petitioners for the purpose of causing certain low and wet lands, in the county of Orange, in this state, of which they were the owners, to be drained through ditches to be constructed over the lands of others, and the warrant for its commencement and for the various steps which have been taken is claimed to be found in chapter 384 of the Laws of 1895. The act provided, in its first section, that “a person owning agricultural lands within this state may institute proceedings for the drainage of such lands or the protection thereof from overflow, by the construction and maintenance of a drain or dyke, on the lands of another person, or the use of mechanical devices, by presenting a verified petition to the county court of the county in which such lands are located, or if in more than one county, to a special term of the supreme court of the district where the lands or a part thereof are situated, setting forth a general description of the lands to be drained or pro-
The question, which we have before us, involves, primarily, the consideration of the amendment of section seven of article one of the State Constitution, adopted in 1894; which is relied upon as validating the enactment by the legislature of the Drainage Act of 1895. The section of the Constitution referred to reads, in its entirety, as follows: “When private property shall be taken for any public use, the compensation to be made therefor, when such compensation is not made by the state, shall be ascertained by a jury, or by not less than three commissioners appointed by a court of record, as shall be prescribed by law. Private roads may be opened in the manner to be prescribed by law; but in every case the necessity of the road and the amount of all damage to be sustained by the opening thereof shall be first determined by a jury of freeholders, and such amount, together with the expenses
If the amendment is in conflict with any of the provisions of the Federal Constitution, it must fail; for, within its sphere of operation, that instrument is supreme and, no more by constitutional provisions than by legislation, can the states of the Union override its prohibitions. It is an ancient principle, which entered into our social compact, that the use for which private property may be taken must be a public one; whether the taking be by the exercise of the right of eminent domain, or by that of taxation. The sovereign power is incapable of conferring any right to interfere with private property, except it be needed for public objects. To take land for any other than a public use; to take it from one citizen and to transfer it to another, even for full compensation, would be to violate the contract by which the land was originally granted by government. (Beekman v. S. & S. R. R. Co., 3 Paige, 45, 73; Bloodgood v. M. & H. R. R. Co., 18 Wend. 9.)
The fourteenth amendment of the Federal Constitution, in prohibiting a state from depriving any person of life, liberty or property, without due process of law, protects the citizen against the taking of his property for any other than a public use, either under the guise of taxation, or by the assumption of the right of eminent domain. (Fallbrook Irrigation District v. Bradley, 164 U. S. 158.) It is a security against the arbitrary spoliation of property, or any abridgment of the immunities of citizens of the United States. The State Con-
It was observed by Judge DENIO, in People v. Smith, (21 N. Y. at p. 598), that it would not be due process of law to “appropriate the property of one citizen for the use of another, or to confiscate the property of one person or a class of persons, or a particular description of property upon some view of public policy, where it could not be said to be taken for a public use.” Whether that is a public use, for which private property is authorized to be taken, will depend upon the object aimed at and whether the plan has such an obvious, or recognized, character of public utility, as to justify the exercise of the right of eminent domain, or of the power of taxation, in its favor. I suppose, in that consideration, when some new constitutional provision is in question, regard should be had to prior conditions, in the laws and in the decisions of the courts of the state upon the subject, which illustrate some settled policy of the community. That can be understood by reference to the cases which arose under the Mill Acts in the New England states, the Irrigation Acts in the Western states and the Drainage Statute of New Jersey. (Head v. Amoskeag Manufacturing Co., 113 U. S. 9; Wurts v. Hoagland, 114 ib. 606; Fallbrook Irrigation District v. Bradley, 164 ib. 112.) The statutes, in those cases, were justified, either in view of a policy in force prior to the adoption of the state constitutions; or, within a similar principle, by long exercise of a legislative power which the state courts had sustained. In Wurts v. Hoagland, the New Jersey Drainage Statute discussed was framed in the public interest. It authorized the board of managers of the geological survey, “upon the application of at least five owners of separate lots of land, etc.,” to examine the tract and, if they deemed it for the interest of the public and the landowners affected thereby, to adopt a system of drainage and to report it to the Supreme
In this state, prior to the adoption of this constitutional amendment, a general drainage law appeared in the Revised Statutes (2 R. S. 548); but it was very early declared by this court to be unconstitutional, as authorizing the taking of the property of the owner of the land and transferring it to the applicant for the ditch against the consent of the owner. (Gilbert v. Foote, not reported, but cited in White v. White, 5 Barb. at p. 483, in 1849, and referred to in Matter of Ryers, 72 N. Y. 1.) It was said of Gilbert v. Foote by Judge FOLGER, in Ryers’ case, that, “it is understood that the judgment of this court went mainly upon the ground that the act sought to permit the taking of private property for a private use, which was not a use for a private way.” In 1869 a general act for the drainage of swamps and the like was passed, (Chap. 888, Laws of 1869), the constitutionality of which was challenged in Ryers’ case. It contained a provision that the commissioners appointed by the court upon the application of the petitioners should determine, not only the question of the necessity of the ditch for the drainage purposes, but “whether it is necessary for the public health,” and other provisions restricted the purpose of the proceeding to that of the benefit of the public health. Such provisions were, doubtless, inserted in amendment of the prior general drainage statute and to obviate the objection to its constitutionality. (Matter of Draining Swamp Lands, etc., 5 Hun, 116.) The opinion of this court in Ryers’ case proceeded upon the proposition of the right to take private property for public use, making due compensation therefor, and that the maintenance and promotion of the public health were matters of public concern. It was held to be a constitutional power of legislation to provide for removing or abating that which has become a public nuisance, injuring the public health. “We are not called upon in this case,” Judge FOLGER observed, “to uphold an act which has for its purpose the benefit of individuals. As before said, it avows, and avows only, a public purpose. * * *
It must be conceded, therefore, that, up to 1894, such a drainage proceeding as would be authorized under this amendment to our Constitution, being for a private purpose, was neither sanctioned by the laws, nor upheld by the courts. The policy of the state, thus evidenced, was manifestly founded on the sanctity of private property rights under the social compact and was adverse to any legislation which would violate it. It was well within the legislative power to make the state the sole actor and in the interest of a public necessity, or convenience, to authorize such interference by the public authorities with private rights as would abate conditions prejudicial to the health, or comfort, of the community; or to authorize private persons to take the initiative in the same direction of public utility. In the drainage statute in question in People ex rel. Cook v. Nearing, (27 N. Y. 306), for instance, the legislature appointed the commissioners to drain the wet and swamp lands of the town of Cicero and directed their procedure. The state was the actor in the matter and thus the presumption of a public purpose or necessity was conclusively furnished. The legislative action was similar in the acts referred to in Hartwell v. Armstrong, (19 Barb. 166), and in People ex rel. Parker v. Jefferson Co. Court, (55 N. Y. 604). But, lacking public ends, I find nothing in the past political history of the state which would justify laws, by which a citizen may be authorized to take the property of his neighbor by the exercise of the right of eminent domain, for a purpose which is primarily for his private benefit; although, incidentally, of such possible benefit generally, as any improvement of agricultural lands would result in. Such legislation is not sound in principle and we are not embarrassed by any long acquiescence,
When the Constitution of this state was amended in this way by the people, in 1894, it was intended, undoubtedly, by embodying in the organic law an authorization for the passage of general laws permitting owners of agricultural lands to construct and maintain ditches for the drainage of their properties, to conclusively sanction such legislation thereafter. The probable intent of any law may often be stated from a consideration of the political conditions which existed; the presence of which might be deemed, not unnaturally, to operate upon the lawmakers. An amendment of the organic law of the state represents the expression of the dominant popular sentiment upon the subject and in this instance it, undoubtedly, represents a purpose to make that lawful which before was not. The reasoning would be that, if it was unconstitutional and, therefore, unlawful before to authorize the taking of private property for the private purpose of the drainage of agricultural lands, by giving it constitutional warrant, it would become lawful to do so; if, indeed, the plan might not be perforce invested with a public interest. But this result would, and should, not be attained, if the constitutional amendment was in conflict with those provisions of the supreme law of the land, embodied in the Federal Constitution, which guarantee the citizen against the taking of his life, liberty or property without due process of law. The amendment of our Constitution does not, in terms, declare its object to be a public one. Indeed, I think that its language, by a fair reading, rather negatives such an inference and imports that the object is the private benefit of the landowner; for the purpose is stated to be the drainage only of his lands and he is to make just compensation for the land appropriated to that purpose. I conceive the proper rule of construction to be that, if the amendment expressed a purpose theretofore recognized as public, it would afford that sufficient sanction for subsequent legislation
If, however, the amendment in question can be upheld as valid, upon the assumption that it removes a constitutional limitation upon legislation providing for the drainage of agricultural lands and that it can rest for its justification upon a common local necessity, independent of the public health, and concerning the promotion of the prosperity of the community, then it seems clear to me that it affords no warrant for the enactment of this drainage law. The section of the article of the Constitution, to which the amendment was added, prescribed the tribunal which shall ascertain the compensation to be made for the private property “taken for any public use,” and then proceeded to provide for the opening of private roads
In the enactment of the Drainage Law of 1895, the legislature went far beyond the terms of the constitutional warrant; for the act provided, in addition to the exercise of the right of eminent domain, that a petitioner might compel the cost of the proceeding and of the work to be apportioned between all landowners deemed benefited by the commissioners. The scope and intendment of the law are that the expense of constructing the drain and the damage for the appropriation of property shall be borne by the petitioners jointly with the owners of the land taken, in proportion to benefits accrued. As we have pointed out, the amendment does not authorize this and the legislature has only that general power with respect to taxation as would justify its exercise for public purposes. Private property may be constitutionally taken for public use by taxation, as it may by right of eminent domain, and the compensation which must be specially made in the latter case, when property is taken, is deemed to be received, when property is taken under the power of taxation, in the protection afforded by government to the life, liberty and property of persons; or in the increase of the value of their possessions by the application of their moneys to the public purpose. (People ex rel. Griffin v. Major, 4 N. Y. 419.) In taxation, or in taking private property for public uses, the individual is presumed to receive, or in fact does receive, some equivalent for his contribution. The legislature is, doubtless, the final judge as to what the public necessity and the general good require to be done, as to the extent of taxation therefor and as to its apportionment, and it constitutes no objection to the exercise of the power of taxation that the burden thereof should be laid upon the territorial district, which is exclusively affected by the legislative scheme.
Nor was there any waiver on the part of the respondents of their right to object. They opposed the application of the commissioners to the County Court for the order directing the
Upon either of the grounds that I have discussed, the conclusion must be reached that the order and judgment appealed from should be affirmed, with costs.
PARKER, Ch. J. While I agree with Judge GRAY, that the statute under consideration is violative of the State Constitution, and, therefore, concur with him in the result, I am at the same time confident that it was the design of the recent amendment to section 7 of article 1 of the Constitution to authorize legislation providing a workable scheme by which to secure the drainage of tracts of land, whether large or small, in order to provide for their proper utilization, thus establishing it to be a part of the fundamental law of the state that such drainage constitutes a public use, and that such section is not in conflict with the Federal Constitution.
GRAY, J., reads for affirmance of order and judgment, with costs; PARKER, Ch. J., and HAIGHT, J., concur in memorandum; O‘BRIEN, LANDON and WERNER, JJ., concur on second ground stated in opinion; CULLEN, J., not sitting.
Order and judgment affirmed.