9 Misc. 2d 73 | N.Y. Sup. Ct. | 1957
This action for a declaratory judgment and permanent injunction is unusual and interesting and presents the following factual situation:
Plaintiff, The Society of the New York Hospital, a charitable corporation, owns, operates and maintains a hospital in the city of White Plains, New York, which occupies a part of the area lying between Mamaroneck Avenue, Bloomingdale Boad, Westchester Avenue, North Street, the St. Agnes Home, land now or formerly of Daniel Maloney and the Burke Foundation.
In 1927 the Legislature of the State of New York enacted a special statute (L. 1927, ch. 659) which, inter alia, provides that “ No street or avenue or road shall hereafter be laid out or opened through or upon any lands [above described] * * * and none of said land shall be taken for any use whenever and so long as the same shall be owned or occupied for hospital purposes by The Society of The New York Hospital, provided, however, that the said The Society of The New York Hospital shall dedicate, without claim or award for damages, for street purposes ” three separate parcels of land specifically described in said enactment and, in addition, provide $150,000 for the paving and regulating of the street described in the first two of the said three parcels. Simultaneously therewith, a companion statute was enacted (L. 1927, ch. 653) which amended the City Charter of the City of White Plains and provided that “ It shall be unlawful to open any streets through the grounds belonging to The Society of The New York Hospital now occupied by Bloomingdale Hospital as long as the same is owned or occupied for hospital purposes ”.
Thereafter, ■ and in accordance with the provisions of said legislative enactment, plaintiff executed and delivered to the City of White Plains a deed of the said three parcels of property and also paid over to said city the sum of $150,000 for the said regulating and paving of the streets.
Now, 30 years after the enactment of said statutes, the State of New York, through the defendant, its Superintendent of Public Works, is in the process of constructing an interstate route connecting the New England Thruway and the New York State Thruway. Defendant deems it necessary pursuant to
Plaintiff now brings this action for a declaratory judgment that none of its lands and premises afore-mentioned may be appropriated by defendant, Superintendent of Public Works, under the authority vested in him by said Highway Law so long as the property is occupied by plaintiff for hospital purposes and for a permanent injunction restraining defendant from exercising or attempting to exercise with respect to plaintiff’s property any of the powers delegated to him by said Highway Law so long as said property is occupied by plaintiff for hospital purposes. In opposing the instant motion for an injunction pendente lite, defendant cross-moves to dismiss the complaint for legal insufficiency (Rules Civ. Prac., rule 106, subd. 4).
Defendant, while recognizing the enactment of the said special statute (L. 1927, ch. 659), nevertheless meets this attack by taking the position that his conduct is likewise authorized by the Legislature of the State of New York by the power vested in him by the said provisions of the Highway Law and that the sovereign right of eminent domain may not be abridged, surrendered or alienated by a special act of the Legislature. In short, he challenges the validity of both statutes (L. 1927, chs. 653, 659), and urges that one Legislature cannot tie the hands of its successor or restrain their power to authorize the taking of property for public use when public necessity requires it and, thus, prevent the exercise of one of the vital functions allotted to the Legislature by the Constitution.
Plaintiff, on the other hand, is deeply concerned. It points out, among other things, that if the provisions of said chapter 659 of the Laws of 1927 are held to be invalid, then a whole series of special statutes, from which it was patterned, will likewise be invalidated and that the result thereof may be
While it concedes that chapter 659 of the Laws of 1927 is not a complete bar to the taking of any of its land so long as the same is used for hospital purposes, nevertheless, it urges that as a condition precedent thereto, the Legislature must first repeal said statute and that since the Legislature has seen fit to permit this statute to remain in existence, the defendant should be barred from appropriating any of its lands at this time. The court does not agree with this contention.
In the resolution of this question, the court is not called upon to decide whether a special statute takes precedence over the provisions of a general statute such as the Highway Law, nor is it required to find with any degree of finality whether or not the Legislature by the “ Notwithstanding ” clause in section 340-b of the Highway Law, effective April 15, 1956, expressly or impliedly intended to repeal chapter 659 of the Laws of 1927, or whether it intended to break its contracts with various persons by way of prior statutory enactments that their lands would not be taken, or that it was then aware of the existing statutes with respect to the lands of plaintiff or other institutions alleged to be similarly situated or intended to affect the validity of such statutes. Likewise, the court is not now con
The power of eminent domain and its limitations can be best expressed by adopting the language of the Court of Appeals in People v. Adirondack Ry. Co. (160 N. Y. 225, 236-237, affd. sub. nom, Adirondack Ry. Co. v. New York State, 176 U. S. 335) as follows: ‘ ‘ The power of taxation, the police power and the power of eminent domain, underlie the Constitution and rest upon necessity, because there can be no effective government without them. They are not conferred by the Constitution, but exist because the state exists, and they are essential to its existence. They are not rights reserved, but rights inherent in the state as sovereign. While they may be limited and regulated by the Constitution, they exist independently of it as a necessary attribute of sovereignty. They belong to the state because
The court’s determination herein is buttressed by the decision in Pennsylvania Hosp. v. City of Philadelphia (245 U. S. 20) where the facts are almost similar to those in the case at bar, the plaintiff in error, a charitable institution, was organized under the Laws of Pennsylvania and in 1841 it established on a tract of land in the city of Philadelphia a hospital for the care and cure of the insane. Solicitous lest the opening of streets, lanes and alleys through its ground might injuriously affect the performance of the work, in 1854, a committee of the managers of the hospital memorialized the Legislature on that subject and this resulted in the passage of a law specially forbidding the opening of any street or alley through the grounds in question without the consent of the hospital authorities. The act was similarly conditioned upon the hospital making certain payments and furnishing ground for a designated public street or streets and these terms were likewise accepted by the hospital and complied with. In 1913, about 60 years later, the City of Philadelphia, within the authority conferred upon it by the State, took the necessary preliminary steps to acquire by eminent domain land for the opening of a street through the hospital grounds and a suit was begun by the hospital by way of injunction to restrain the city from opening a street through its grounds upon the claim that such conduct would violate the act of 1854. Judgment was rendered against the hospital and the complaint was dismissed. (Pennsylvania Hosp. v. City of Philadelphia, 254 Pa. St. 392.) The Supreme Court of Pennsylvania upheld the right of the city to exert the power of
As stated in Lewis on Eminent Domain (3rd ed., Vol. 1, § 3, p. 7): “ The correct view is that the power of eminent domain is not a reversed, but an inherent right, a right which pertains to sovereignty as a necessary, constant and inextinguishable attribute.” (The context indicates that the word “ reversed ” was intended to be “reserved”.) “ The sovereign power to take private property for public use cannot be surrendered, alienated, or contracted away, since it is essential to the public welfare and a sovereign power cannot be surrendered; the legislature or a municipality cannot bind itself or its successors ■not to exercise the power when public necessity and convenience require such exercise. If there is an attempt to contract away the power, it may be resumed at will. Likewise the power cannot be impaired ” (29 C. J. S., Eminent Domain, § 4, p 782).
The court recognizes and appreciates the persuasiveness and weight of plaintiff’s contention that even though said section 340-b of the Highway Law, effective April 15, 1956, does contain the “Notwithstanding” clause, nevertheless, there is nothing to indicate that the Legislature by the enactment of said section of the Highway Law ever considered the basically important question whether the public need for highways required that the exceptions contractually granted plaintiff by the 1927 statute be nullified, and that such clauses are usually stock phrases in situations where a State agency is anxious to proceed with all possible speed. For this reason, the court deems it appropriate to make the following observation although it is constrained to disagree with plaintiff in this regard.
While it is true that here there is no express repeal of the 1927 statute by name, nevertheless, the court is of the view that for the purpose of the determination to be made herein, there has at least been a repeal of said statute by strong implication.
The language of the Appellate Division, in Gerry v. Vogler (252 App. Div. 217, 219-220) is relevant: “We realize that repeal of a statute by implication is not favored. We are also mindful of the rule asserted by defendant that a special law governing a particular subject is not ordinarily repealed by a subsequent statute which is general in character. To the latter rule there is, however, a well-established exception, viz., that a subsequent general statute will repeal a prior special law relating to the same subject where inconsistency exists and the Legislature’s intent to effect such a repeal is manifest. ‘ “ A general statute will repeal special or local acts without naming them, where they are inconsistent with it, and where it can be seen from the whole enactment that it was the intention of the Legislature to sweep away all local peculiarities thus sanctioned by special acts, and to establish one uniform system.” * * * “ There is no rule of law which prohibits the repeal of a special ■act by a general one, nor is there any principle forbidding such ■repeal without the use of words declarative of that intent. The question is always one of intention, and the purpose of abrogating a particular enactment by a later general statute is sufficiently manifested when the provisions cannot stand together.” ’ ” (Citing many authorities.)
In the case at bar, it is obvious that the 1927 statute (L. 1927, ch. 659) under the present factual situation cannot coexist with section 30 of the Highway Law, which deals with the acquisition by the State of property acquired for the construction and reconstruction of State highways, and sections 340-a and 340-b of the Highway Law, which deal with the construction of State interstate highways. Pursuant to these sections of the Iligii
Accordingly, in the light of the afore-mentioned and since the material allegations of the complaint are admitted and no questions of fact are presented, plaintiff’s motion is denied, the defendant is entitled to a judgment on the merits to the extent of declaring that chapter 659 of the Laws of 1927 is invalid insofar as it prohibits the defendant from appropriating plaintiff’s land as laid out upon the appropriation map filed in the office of the Secretary of State and in the Department of Public Works on January 31, 1957, and insofar as it prevents the filing of said map in the office of the Clerk of the County of Westchester, and that defendant may not be enjoined from entering upon plaintiff’s lands in the name of the State of New York for the purposes connected with the highway system of the State of New York. (Cf. Hoffman v. City of Syracuse, 2 A D 2d 653, mod. on other grounds 2 N Y 2d 484, and cases cited therein; Strobe v. Netherland Co., 245 App. Div. 573; Birnbaum v. New York State Teachers Retirement System, 3 A D 2d 815.)
Implicit in the determination herein is a finding by the court that it has jurisdiction of the subject matter of this action (Pauchogue Land Corp. v. State Park Comm., 243 N. Y. 15; Niagara Falls Power Co. v. White, 292 N. Y. 472). Moreover, said determination is without prejudice to whatever rights plaintiff may have to compensation for the taking of its land.
Settle order and judgment on notice.
