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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 605 This appeal presents but one question that requires special consideration and that is whether the act of the legislature above quoted violates the provisions of the Constitution. In considering that question we may *Page 609 take judicial notice of the location, size and commercial importance of the city of Buffalo. It is conceded that a large number of important trunk-line railroads terminate in or pass through the city, and each has passenger and freight depots and accompanying terminal tracks, sidings and switches within its boundaries. There are several hundred miles of railroad tracks in its streets at grade. The enormous amount of passenger and freight business within the city arises not alone from its large population, but from its being a central point in railroad transportation and the eastern terminal of navigation on the Great Lakes. The extent of the transportation business centered in the city makes the questions relating to grade crossings and terminal and depot facilities therein of great municipal and public importance. In determining such questions the conflicts that arise among public officers or bodies required to act thereon; groups of owners of real property situated in different sections of the city and the several railroad and navigation corporations having independent and special interests involved, make it important that adequate authority and control should rest in some one body of men to determine and enforce plans by which the use of the city streets by railroads at grade shall be avoided and the handling of passengers and freight in the municipal and public interest shall be promoted.
It is not denied that efforts to agree upon a solution of the problems arising from a concededly troublesome and unusual situation have frequently failed. A grade crossing commission for the city of Buffalo was created by chapter 345 of the Laws of 1888, and has since existed. The object of that act was to do away with grade crossings through the action of the city in co-operation with the railroad companies centering in or passing through the same. The agency adopted to accomplish this object was a commission. (Matter of Grade Crossing Commission,Buffalo, *Page 610 154 N.Y. 550.) That commission has been unable to accomplish the abolition of some of the most important grade crossings and to reasonably improve transportation facilities in the city for lack of adequate authority over the conflicting interests. The public service commission has also been unable, or at least has failed to secure satisfactory results. The act in question was passed in an effort to solve the problems that have concededly existed and that have so far been difficult or impossible of solution, and by solving them bring about a reasonable security to life and limb in the public streets and better commercial facilities for the city.
I do not assert that an unusual and complicated state of facts will justify a disregard by the legislature of constitutional provisions, but I do assert that an unusual and complicated state of facts will justify necessary and adequate legislation to solve the problems arising therefrom.
Is the act contrary to the provisions of the Constitution? The general legislative power is absolute and unlimited except as restrained by the Constitution. (Matter of Sherrill v.O'Brien, 188 N.Y. 185; Village of Saratoga Springs v.Saratoga Gas, El. L. P. Co., 191 N.Y. 123; People ex rel.Central Trust Co. v. Prendergast, 202 N.Y. 188.)
Every act of the legislature must be presumed to be in harmony with the fundamental law until the contrary is clearly made to appear. (People v. Gillson, 109 N.Y. 389; People ex rel.Kemmler v. Durston, 119 N.Y. 569; Bohmer v. Haffen,161 N.Y. 390; Matter of Stilwell, 139 N.Y. 337; Sweet v. City ofSyracuse, 129 N.Y. 316; People ex rel. Metropolitan StreetRailway Co. v. Tax Commissioners, 174 N.Y. 417.)
Where two constructions of an act of the legislature are possible, one of which renders the act unconstitutional, and the other of which renders the act constitutional, that construction will be given which holds the *Page 611 act constitutional. (Matter of N.Y. E.I. Bridge Co. v.Smith, 148 N.Y. 540; Grenada County Supervisors v. Brogden,112 U.S. 261, 268; People v. Lochner, 177 N.Y. 145; Peopleex rel. Metropolitan Street Railway Co. v. Tax Commissioners,supra.)
The legislature, within the constitutional limitations, may resume powers delegated to localities and assume the direct control of matters pretaining to local government. (People v.Tweed, 63 N.Y. 202; People ex rel. McLean v. Flagg, 46 N.Y. 401;People ex rel. Morrill v. Board of Supervisors, QueensCo., 112 N.Y. 585.)
In my opinion the most serious objection to the constitutionality of the act in question is the asserted claim that it violates article VIII, section 10, of the Constitution, which provides "No county, city, town or village shall hereafter give any money or property, or loan its money or credit to or in aid of any individual, association or corporation, * * *; nor shall any such county, city, town or village be allowed to incur any indebtedness except for county, city, town or village purposes. * * *"
It is claimed that the act permits, even if it does not require, the city of Buffalo to give or at least loan its credit in the purchase of real property to be used as the location for passenger and freight depots and other terminal facilities for the railroads. If such is the true construction of the act it is unconstitutional. I do not in anything I say intend to assert the contrary. I think the act can reasonably be construed as not including such authority.
Before examining the provisions of the act under consideration, I will refer briefly to the legislative provisions relating to grade crossings and the decisions of the courts upholding the same.
The legislature, either directly or through a lawful commission, can exercise authority over railroad crossings in securing public safety without violating the Federal or State Constitutions. (Matter of Boston *Page 612 Albany R.R. Co., 64 App. Div. 257, and cases cited; affirmed, Court of Appeals, 170 N.Y. 619; Matter of N.Y.C. H.R.R.R.Co., 136 App. Div. 760; affirmed, so far as now considered, in200 N.Y. 121.)
The acts relating to grade crossings are not unconstitutional, because the work is not alone for the benefit of the railroad companies, but for the municipality, and is to the advantage of the people of the state, and public safety is thereby enhanced.
The present statute in regard to altering existing crossings at grade and under which changes are being made from time to time without the constitutional authority of the legislature to pass the act being challenged, is the Railroad Law [Cons. Laws, ch. 49], (§§ 91 to 99 inclusive).
Where a grade crossing is to be eliminated the statute provides for a division of the expense thereof between the railroad corporation, the municipality and the state. (§ 94.)
It also provides (§ 94) that in carrying out the provisions of an order abolishing a grade crossing, "the expense of construction shall be paid primarily by the railroad company, and the expense of acquiring additional lands, rights or easements shall be paid primarily by the municipal corporation wherein such highway crossings are located."
It also provides (§ 92) that "The municipal corporation in which the highway crossing is located * * * may with the approval of the railroad company acquire by purchase any lands, rights or easements necessary of required for the purpose of carrying out the provisions of sections * * * ninety-one of this chapter; but if unable to do so shall acquire such lands, rights or easements by condemnation either under the condemnation law or under the provisions of the charter of such municipal corporation."
It is apparent that lands, rights and easements are necessary and required for the purpose of carrying out *Page 613 the provisions of the Grade Crossing Act, some of which areultimately to be occupied by the railroad company.
The provisions of the Railroad Law relating to grade crossings do not apply to crossings in the city of Buffalo under the jurisdiction of the grade crossing commissioners of that city. (§ 99.) The Grade Crossing Law of the city of Buffalo, hereinbefore referred to, provides specifically for taking real property necessary for carrying out the provisions of the act. The constitutionality of that act has been generally assumed by the parties interested and by the courts. (Matter of Grade CrossingCommissioners, Buffalo, 17 App. Div. 54; affirmed, 154 N.Y. 550, and many other reported cases, including 6 App. Div. 327; 21 App. Div. 633;154 N.Y. 561; 46 App. Div. 473; 166 N.Y. 69; 66 App. Div. 439;116 App. Div. 549; 52 App. Div. 27; 165 N.Y. 605;169 N.Y. 605.)
The Grade Crossing Act of the city of Buffalo was amended by chapter 358 of the Laws of 1911, by which there was excepted from the jurisdiction of the commission therein named that part of the city specifically described, being about five miles in length along the lake front.
If the authority of the terminal commissioners to acquire lands or to lend the credit of the city of Buffalo, for the purpose of acquiring lands, is confined to lands to be acquired for the purpose of eliminating grade crossings, the act does not, in the particular now considered, offend against the Constitution.
It is necessary, therefore, to examine the provisions of the act under consideration to determine whether it confers authority upon the commissioners to acquire lands for the private purposes of the railroad corporations.
By the first section of the act the commissioners are authorized and directed to adopt plans, "which plans shallrequire the railroads, or other transportation corporations operating within the city of Buffalo, to make such changes in the location or use of any existing tracks, *Page 614 switches, terminals, stations or railroad facilities within said city, and which shall require the city to make such changesin the location or grades of the streets, alleys or lands ownedby said city, adjacent to or contiguous to such tracks, switches, terminals, stations or facilities, which in the judgment of said commissioners will secure to the public freedomfrom the obstruction of the streets of said city by railroads and adequate services and facilities for the transportation of passengers, freight and property in said city."
The purpose of the act is to concentrate the power to make and enforce a comprehensive plan to relieve the public from the danger and delay incident to the streets of the city being obstructed by railroads running upon and across them at grade and at the same time relieve the public from inadequate facilities for handling passengers and freight, and thus advance the commerce of the city and the state. That such is the purpose of the act is shown by the first section read as a whole and in connection with the other sections thereof.
In considering the power of the commissioners it is very important to note what the plans adopted by them shall require of the railroads and what they shall require on the part of the city. The requirements from each are defined and specifically stated. All changes in the tracks, switches, terminals, stations or railroad facilities within the city are required to be made by the railroads. The statement of what is required of each is unmistakable and underlies every subsequent provision of the statute. It does not violate the Constitution.
Section 2 of the act is unimportant for the purposes of the present consideration.
Section 3 of the act provides in regard to notice being given before the plans are adopted. In this section of the act it is provided that the commissioners "shall hear the railroad company or companies interested, and the city and any party interested, by their respective representatives *Page 615 or counsel * * * and any interested party, may at such hearing call and examine witnesses as to the feasibility and expediency of such proposed plan." After therein providing, among other things, that the report adopted by them shall state the location of railroad, passenger and freight stations, it further provides that it shall state "the change in the location or grades of the streets, alleys or lands owned by said city, and the change inthe grades of existing structures carrying streets over or underrailroads, which may be necessary in the judgment of said commissioners to secure to the public freedom from the obstructions of the streets of said city by railroads. * * *"
Section 4 of the act provides that after adopting the plans the commissioners shall make and serve an order directing that the improvements therein determined upon by them be made; and it further provides: "And such railroad or other transportation corporation and the city of Buffalo are hereby required and directed to make the improvements or changes required of them, or any of them."
This section read with section 1 of the act, from which I have quoted, is an unmistakable requirement of each railroad corporation to make the changes required by the plans in itstracks, switches, terminals, stations or railroad facilities.
Section 5 of the act authorizes the commissioners to contract on behalf of the city with any railroad company for the purpose of carrying out the provisions of the act, and they are authorized to agree with the contracting company for the change of location or grades of any street, alley or public place which may be necessary, and for the exchange or sale of lands owned by said city. The authority to contract with the railroad company in carrying out the provisions of the act refers to work in which the city and the railroad company are jointly interested. In other words, it refers to grade crossing *Page 616 work. In such case the duties of the municipality and of the railroad corporations are so intermingled that it is almost impossible to separate the particular duties of each. It is for this reason that the general and special grade crossing statutes either provide that the parties jointly interested in eliminating such crossings may contract in regard to the expense thereof, or in place thereof define the primary duty of each in carrying out the plans adopted therefor, and for an accounting between them, and a division of the expense incurred.
Section 6 of the act authorizes an agreement in regard to the proportion of work to be done by each. Such agreement also relates to grade crossing work. The last paragraph of section 6 is precautionary. It should not be construed as granting affirmative authority to the commissioners to acquire real property on which terminals shall be located. Such suggestion is wholly negatived by the clear provisions of the first and fourth sections of the act.
Section 7 of the act provides for condemnation proceedings. What authority is given by that section? It is shown by quoting from the section. "In the event that the plans adopted orcontracts entered into by the commission, as herein provided, shall include as a necessary part thereof the change of the grade of any street, alley or public place, the closing or alteration of any street, alley or public place, or the taking of any lands to widen any street, or to open new streets, and if any property be injured thereby for which the owners or persons interested therein are lawfully entitled to compensation, or in the event that it becomes necessary to ascertain the fair market value of any lands owned by the city of Buffalo, to be exchanged or sold by it, the commissioners by their chairman shall make application to a special term of the supreme court for the appointment of three commissioners. * * *"
There is not one word in the section in regard to *Page 617 condemning lands to make changes in "tracks, switches,terminals, stations or railroad facilities." Such authority is not given because it is wholly unnecessary, as the railroads are required to make such changes as we have hereinbefore seen. The provisions of this section confirm my conclusion that sections 5 and 6 of the act refer to contracts relating to streets, etc.
Section 7 further provides: "The court shall fix the amount of damages, or the fair market value of such lands as are to be ascertained, and the costs and expenses allowed by law to be allowed the landowner and the petitioner, and shall order the same to be paid by the railroad or other transportation corporation and the city in such proportion as shall have been fixed by the commission or by the agreement provided for in section six of this act. * * *"
The provision of the section last quoted necessarily refers to damages fixed for lands taken for streets, etc.
Section 8 of the act relates to the apportionment of work, or the cost of proposed improvements, in case an agreement is not reached between the city and the railroad company, and refers, as does said section 6, to grade crossing work.
The authority given to the commissioners in section 9 of the act to "acquire any lands in the city of Buffalo" is limited by the specific provisions of the act defining what shall be required of the city and of the railroads respectively. I repeat that the railroads are required to make the changes in the tracks, switches, terminals, stations and railroad facilities. Nowhere in the act is there any express requirement that the city, or the commissioners in its behalf, shall or may acquire, temporarily or otherwise, real property for any purpose except in connection with the work of eliminating grade crossings. Authority to acquire real property for any other purpose should not be inferred, particularly when by so doing and so construing the act it will violate a constitutional *Page 618 provision. If the provision in said section 9, making the proceeding provided for in said section 7 applicable for the purpose of acquiring title to any lands necessary to be taken, shows that if lands other than for the purposes mentioned in said section 7 are to be taken by the commissioners, then it is clear that such lands or interest in lands to be taken are such as are necessary for the purpose of making the necessary changes in gas or water pipes, sewers, conduits or other objects mentioned in the section itself. It does not refer to lands to be taken for depot purposes. Such lands are to be acquired by the railroads.
Section 10 of the act provides: "Any lands so taken or any part thereof, or interest or easement therein, shall be used by any railroad, terminal, bridge or other transportation corporation under the provisions of a plan adopted by said commission as provided herein for any of the structures directed to be erected by the commissioners appointed by this act. * * *"
The lands so taken are the lands taken for street purposes, and the word "structures," as mentioned in the above-quoted provision, has the same meaning as the word "structures" in the phrase, "existing structures carrying streets over or under railroads," found in section 3 of the act."
When by the act the city is required to pay for the expense of taking real property, and in said section 10 it provides, "Upon such payment being made (by the railroad company), the fee of the land taken, or the interest or easement to be acquired therein, shall vest in such company," it refers again to lands taken for grade crossing purposes, and the provision that the fee of the land for structures to carry streets over or under railroads is not in conflict with the Constitution for the reasons already stated.
Sections 11, 12 and 13 relate to grade crossing work and work incidental thereto. In view of the other provisions *Page 619 of the act it clearly is not contemplated by section 13 that the city shall ever erect a depot and recover the cost from the railroad company.
Sections 14, 15 and 16 are unimportant in determining the question now before us.
Section 17 is important because by it the authority of the public service commission is preserved, and it is at least in part through co-operation with that commission that the railroads can be compelled to act and "make such changes in the locationor use of any existing tracks, switches, terminals, stations orrailroad facilities," as are required by the plans.
The power of the public service commission to order repairs or changes and to enforce its order is stated in article III of the Public Service Commissions Law [Cons. Laws, ch. 48] (§§ 45 to 59 inclusive).
I am of the opinion that the act does not contemplate the use of city money, directly or indirectly, for private purposes. It is true that the expenditures for street purposes are in large part made necessary by the changes in the terminal facilities of the railroads provided by the plans adopted by the commissioners, but the changes in the streets are, nevertheless, city purposes and the expenditures therefor proper public expenditures.
There is no other objection to the constitutionality of the act which, in my judgment, requires special consideration except the claim that the act violates section 2 of article X of the Constitution, which provides as follows: "All county officers whose election or appointment is not provided for by this Constitution, shall be elected by the electors of the respective counties or appointed by the boards of supervisors, or other county authorities, as the Legislature shall direct. All city, town and village officers, whose election or appointment is not provided for by this Constitution, shall be elected by the electors of such cities, towns and villages, or of some division thereof, or appointed by such authorities thereof, as the *Page 620 Legislature shall designate for that purpose. All other officers, whose election or appointment is not provided for by this Constitution, and all officers, whose offices may hereafter be created by law, shall be elected by the people, or appointed, as the Legislature may direct."
The answer to this objection to the act is the fact that the members of the terminal commission are new officers. The commissioners are not only new officers, but their duties are essentially new duties, although they include some duties which had been previously performed by city officers.
In Sun Printing Publishing Assn. v. Mayor, etc., of N.Y. (8 App. Div. 230; affd., 152 N.Y. 257) the act creating the rapid transit commission of the city of New York was under consideration. Commissioners were named in the act and given very extended power. The authority given to them was in part new and in part taken from other city officers. The act was sustained notwithstanding the fact that their authority under the act was general and included in a considerable part authority that had theretofore existed in and had been exercised by local officers.
In People ex rel. Metropolitan Street Railway Co. v. TaxCommissioners (174 N.Y. 417) the act generally known as the Special Franchise Act was under consideration. By that act the state board of tax commissioners, appointed by the governor, was given authority to make an assessment of special franchises for the purposes of general taxation. Such authority was not only given to the state board of tax commissioners, but included therewith was authority to assess the tangible property connected with such special franchises. The tangible property connected with special franchises is not a mere incidental and trifling matter. It consists of property valued at many millions of dollars which had always theretofore been assessed by local assessors for purposes of general taxation. That act was sustained because the tangible property was so closely *Page 621 connected with the intangible property that it was impracticable to assess it separately.
In the case now before us the act under consideration gives to the terminal commissioners certain authority that had theretofore been vested in part in city officers. For the purpose of carrying out the provisions of the act the duties of the commissioners that are new are so associated and intermingled with the duties now devolved upon them that have heretofore existed in other officers that it is impracticable to wholly separate them. For this reason the appointment of the terminal commissioners by the act does not violate the section of the Constitution last quoted.
The criticisms of the act could in large part have been avoided if greater care had been exercised in its preparation. This court cannot pass upon the degree of skill displayed by the draftsman of the act, or the wisdom of the act either in its entirety or in some of its parts.
The court has only to say whether the act violates the provisions of our fundamental law. I am of the opinion that it does not.
Changes in the act will undoubtedly be made by the legislature if they are suggested and it is shown that they are desirable.
The order should be affirmed, with costs.