99 A.D.2d 804 | N.Y. App. Div. | 1984
Lead Opinion
In an action, inter alia, to declare certain “Rules and Regulations for the Management and Products of the Waters of Southampton” null and void, defendants appeal from a judgment of the Supreme Court, Suffolk County (Underwood, J.), entered July 12, 1982, which granted plaintiffs’ motion for summary judgment and declared the subject rules and regulations to be null and void. Judgment reversed, on the law, without costs or disbursements, motion denied, and matter remitted to the Supreme Court, Suffolk County, for trial in accordance herewith. The State of New York issues fishing licenses which permit the taking of fish at various times of the year in certain ways from State waters specified in the license (see, generally, ECL art 11). On May 2, 1977, the defendants enacted a new set of rules and regulations for the management and products of the waters of the Town of Southampton which, inter alia, limit freshwater fishing therein to residents and student residents of the town, and impose regulations which conflict with the ECL regarding the method or manner of taking fish. (Cf. 6 NYCRR part 10 with Rules and Regulations for the Management and Products of the Waters of the Town of Southampton, art III.) As a result, the State of New York and the Commissioner of Environmental Conservation commenced the instant proceeding for a judgment declaring the relevant and inconsistent rules and regulations of the town to be null and void pursuant to ECL articles 11 and 13. Plaintiffs then moved for summary
Dissenting Opinion
dissents and votes to affirm the judgment, with the following memorandum: I dissent and vote to affirm the judgment annulling certain rules and regulations for the management and products of the waters of the Town of Southampton. This judgment was obtained by the State of New York and the Commissioner of Environmental Conservation on their complaint which alleged, inter alia, that the comprehensive conservation plan of the Fish and Wildlife and Marine and Coastal Resources Laws (ECL arts 11, 13) and regulations promulgated pursuant thereto had pre-empted the entire field of fishing conservation to the exclusion of local regulation. The complaint alleged that the challenged local regulations were inconsistent with State rules respecting fishing seasons and devices and imposed a residency requirement in conflict with State law. The town’s answer was a declaration of independence, “denying] that [the] State is sovereign with respect to the matters * * * alleged in such complaint and deny[ing] the State has any power, authority, right or obligation to bring this action”. It is the town’s position, according to its reply brief, that its waters and lands are “private and proprietary” because its colonial charters vest in it “sole and absolute control” over them to the exclusion of the State. In my opinion, appellants, the trustees of the freeholders and commonalty of the town, encouraged by language in People ex rel. Howell v Jessup (160 NY 249, 268) and People v Miller (235 App Div 226, 231, affd 260 NY 585), have misconstrued the nature of their charters. The issue is not the State’s sovereignty against the town’s “private” property. Rather, the issue is one of home rule, and for purposes of analysis the terms sovereignty and property are synonymous. The town stands in no better position with respect to the State’s pre-emption of fishery management than does any other municipal entity, chartered or not chartered. Hence I believe the judgment was properly made. The fundamental charter of the town is the Dongan Patent of 1686. The charter recited a prior grant of 1676 to appellants’ predecessors, and essentially confirmed it upon noting that the provisions in the prior charter “for constituting them a towne and giving them privileges and Imunityes” had not been “sufficient in law to convey to them such privileges & Imunityes as was designed to be given them”. Therefore, in order to “[e]rect the said towne of Southampton * * * into one Towneship” Governor Thomas Dongan, as the agent of King James the Second, ratified and confirmed to its inhabitants and their heirs and assignees forever the prior grant of lands, franchises, profits and hereditaments, excepting gold and silver mines, to hold “of his said Majesty his heires and Successors in ffree and Comon Soccage according to the Mannor of East Greenwich in the County of Kent within his Majestyes Realme of England”. The charter declared the inhabitants, freeholders and freemen to be a body corporate and politic, capable of taking and conveying property and suing or being sued. It set forth the procedure for choosing town officers, empowered them to make such acts and orders as would be convenient, “so alwayes as the said acts and orders be in no wayes repugnant to the laws of England or of this Province [of New York] which now are or hereafter may be Established”. By act of the colonial assembly of 1691 the various charters of the province’s municipalities were confirmed, and a provision in the first Constitution of the State declared that nothing in it would prejudice rights previously granted by such charters to bodies politic (NY Const of 1777, § XXXVI). By section IV of chapter 155 of the Laws of 1818, passed April 15, 1818, the town was authorized to continue its management of local fisheries for the benefit of the town. A further act, chapter 283 of the Laws of 1831, provided in section 5 that the town would have “sole control over all the fisheries” within the town not the property of individuals, as granted by the Dongan
Nothing in the Federal Constitution protects the proprietary interests of local governments against their State sovereigns (see City of Trenton v State of New Jersey, 262 US 182; Demarest v Mayor of City of N. Y., 74 NY 161, 166-167). Further, the equal protection clause of the Fourteenth Amendment, cited by the State in relation to the residency issue but not dispositive of this appeal, deems all acts of municipal officials to be acts of the State (see Hassan v Town of East Hampton, 500 F Supp 1034; Matter of Johnson, 93 AD2d 1, 6 [citing cases], revd on other grounds 59 NY2d 461).