In 1922 there was created by an act of the Legislature the Westchester County Park Commission. (L. 1922, ch. 292.) The Commission constructed and now maintains, except for certain portions hereinafter mentioned, the Hutchinson River Parkway. That parkway consists of a four-lane roadway for vehicular traffic, two lanes moving in each direction, and extends through the county of Westchester in a northeasterly direction for a distance of some sixteen miles. The roadway has been so constructed, by means of bridges, underpasses, overpasses and traffic circles, as not to cross at grade any highway or other public road or the right of way of any public utility. Certain portions of the parkway consisting of direct continuations and extensions thereof at either end, constructed in similar manner, extending into the city of New York at the southerly end and to the boundary line between the States of New York and Connecticut at the northerly end and there connecting with the Merritt Parkway extending into the State of Connecticut, were constructed by the State of New York with funds of the United States allocated pursuant to the Federal Emergency Relief Appropriation Act of 1935. These extensions total three and seven-tenths miles in length and are maintained by the Westchester County Park Commission, acting for the county of Westchester, in the *Page 227 same manner as its county parkways under agreements executed by it with the New York State Department of Public Works, Division of Highways. It is conceded, to quote the agreed statement of facts, that the parkway "provides a through route for motor vehicles between the City of New York, the State of Connecticut, points in the County of Westchester and northern New York, and connects with through public highways at either end and at points along its route."
On August 7, 1939, the Board of Supervisors of the County of Westchester adopted a local law known as "Local Law No. 5," described as "An act providing for the collection of tolls on the Hutchinson River Parkway between the Boston Post Road and Westchester Avenue, in the County of Westchester, authorizing the installation of the necessary toll station and equipment in connection therewith, and providing for the disposition of the tolls collected." The toll booths and stations were erected upon the portion of the parkway constructed by the county of Westchester with county funds pursuant to the statute creating the Westchester County Park Commission. Vehicles traveling on the three and seven-tenths miles of extensions constructed with funds other than those of the county of Westchester may avoid the payment of the tolls by leaving the parkway before reaching the toll booths and traveling by more circuitous routes.
The State of New York contends that no power was conferred upon the county of Westchester or the Westchester County Park Commission to impose or collect a toll for the use of the Hutchinson River Parkway or any portion thereof.
The determination of that question depends upon whether the Hutchinson River Parkway is a public highway and whether section 4 of the Westchester County Charter (L. 1937, ch. 617) conferred upon the county the power to supersede section 54 of the Vehicle and Traffic Law (Cons. Laws, ch. 71), a general State statute. *Page 228
The Vehicle and Traffic Law, in section 2, partially defines what constitutes a public highway. It reads as follows: "`Public highway' shall include any highway, road, street, avenue, alley, public place, public driveway or any other public way." By the terms of the definition there are public highways not described by the named inclusions. Elliott on Roads and Streets, in section 3, page 4, gives the test for determining when a way is a highway, as follows: "If a way is one over which the public have a general right of passage, it is, in legal contemplation, a highway, whether it be one owned by a private corporation or one owned by the government, or a governmental corporation, and whether it be situated in a town or in the country. No matter whether it be established by prescription or by dedication, or under the right of eminent domain, it is a highway if there is a general right to use it for travel. The mode of its creation does not of itself invariably determine its character, for this, in general, is determined by the rights which the public have in it."
A four-lane roadway for vehicular traffic with two lanes moving in each direction and providing a through route for motor vehicles between the city of New York, the State of Connecticut, points in the county of Westchester and northern New York, and connecting with through public highways at either end and at points along its route, and over which the public has had a general right of passage since its construction and elongation, is clearly a highway. Landscaping the right of way does not make "an ordinary park" out of what is essentially a highway.
Even within the inclusions mentioned in the statute, the Hutchinson River Parkway is a "public highway." Certainly it is a "public driveway" and "public way" under the statute as broadened by the amendment of 1930 (L. 1930, ch. 756). The statute theretofore had read: "`Public highway' shall include any highway, country road, county highway, state highway, state road, public street, avenue, alley, park, parkway or public place in any county, city, borough, town or village, in this state." The Legislature removed *Page 229 any restrictive mention of municipal subdivisions and extended the definition of "public highway" so as to include not only a "public place" but also a "public driveway or any other public way." It indicated the policy of the State to meet the conditions created and constantly altered and enlarged by the automobile to include every "public way" upon which an automobile might lawfully be operated by the public.
Indeed, the contention that the Hutchinson River Parkway is not a public highway would not be claimed to be serious except for the decision in Matter of County of Westchester (HutchinsonRiver Parkway) (246 N.Y. 314), where this court decided that this very parkway was not a "street, avenue, highway, or road" within the meaning of section 90 of the Railroad Law (Cons. Laws, ch. 49).
That case arose under an entirely different statute, having no concern with the use of the parkway by motor vehicles. It was there held that the Hutchinson River Parkway was not "a street, avenue, highway, or road" of a municipal corporation within the meaning and intent of section 90 of the Railroad Law requiring notice to be given by the municipal corporation to a railroad corporation across whose right of way such street or highway, was to be constructed. The Railroad Law contained no definition of the words street, highway, or municipal corporation. The parkway extended at that time through several municipalities, yet control and management was not vested in them, but in the Westchester County Parkway Commission. Judge O'BRIEN, writing for the court in that case (pp. 319, 320), said: "Westchester county is literally a municipal corporation (Section 3, General Corporation Law [Cons. Laws, ch. 23]; section 3, County Law [Cons. Laws, ch. 11]; section 2, General Municipal Law [Cons. Laws, ch. 24]), yet we cannot forbear to reject the idea that when the Railroad Law deals with the laying out of new streets by municipal corporations, it ever contemplated a rural parkway through several townships as a street of a municipal corporation. It must, in reason, have intended *Page 230 to restrict the idea of a street to its ordinarily accepted meaning. It meant conventional streets in a city or village. Only by straining at technical definitions in other statutes which statutory definitions are wholly at variance with accepted meanings and are intended to be applied in the light of common sense and in accordance with the contexts of those statutes, can an extensive parkway system of a county be dragged within the inclosure of section 90 of the Railroad Law and be transformed into a street." (Italics supplied.)
In other words, it was decided that the meaning and intent of the section of the Railroad Law there considered was not applicable to such an extended rural parkway, that a county was not a municipal corporation within its meaning, and that, since the Railroad Law did not contain its own definition of highways, the definition suitable was that contained in the Westchester County Park Commission Act.
Even more important, the opinion spoke of times and conditions antedating the determination that it was expedient or necessary to construct the continuations and extensions of the parkway so as to extend it into the city of New York and to the Connecticut line so as to join the Merritt Parkway of that State — continuations and extensions, incidentally, made under the provisions of the Federal Highway Act (U.S. Code, tit. 23), containing in section 9 the express condition that no tolls be charged on highways constructed thereunder. While no point of this restriction is made here, in view of the location of the toll booths and stations, it has strong bearing on the present character of the parkway when considered in connection with the provisions of the Vehicle and Traffic Law and the situation obtaining at the time of the decision in Matter of County ofWestchester (Hutchinson River Parkway) (supra), in 1927. The language of the opinion did not establish or fix the then conditions so as to make them unchangeable and may not now be held applicable to entirely different ones. *Page 231
The Vehicle and Traffic Law is a general statute governing the use of motor vehicles. It makes no distinction between city, town and country roads or whether they run through parks or constitute part of a park system. The test would appear to be whether the public has a general right of passage in motor vehicles. If it have, then that is the measuring rod to be applied under the statute in determining the right of the public to the free use of all public passages or ways, however they may be termed
Section 54 of that act provides:
"§ 54. Local ordinances prohibited. Except as otherwise provided in this chapter, local authorities shall have no power to pass, enforce or maintain any ordinance, rule or regulation requiring from any owner of a motor vehicle or motor cycle, or from any operator or chauffeur to whom this chapter is applicable, any tax, fee, license or permit for the use of the public highways, or excluding any such owner, operator or chauffeur from the free use of such public highways, * * *."
Section 2, subdivision 19, defines "Local authorities" to include all officers, boards, committees and other public officials of counties. The clear purpose of the statute was to prevent local tolls for the use by automobiles of any public place in the State where they may properly be operated.
Once it becomes manifest that the Hutchinson River Parkway is a public highway, then a reading of section 54 of the Vehicle and Traffic Law indicates that the passage of any law such as Local Law No. 5 is proscribed.
No power to abrogate the prohibition was conferred upon the county by section 4 of the Westchester County Charter. That section reads as follows: "The enumeration of particular powers by this act shall not be deemed to be exclusive, but in addition to the powers enumerated or implied herein or appropriate to the exercise of such powers, the county shall have and may exercise all powers which under the constitution of the state of New York it would be competent for this act specifically to enumerate, and all *Page 232 powers necessarily incident or fairly to be implied, not inconsistent with the provisions hereof * * *."
This must be construed as a general grant of local administrative power and not as authority permitting the abrogation of a general State law forbidding a tax, fee, license or permit for the use of the public highways.
In Jewish Consumptives' Relief Society v. Town of Woodbury (230 App. Div. 228; affd., 256 N.Y. 619) Presiding Justice LAZANSKY said (at p. 234): "The authority of a municipality to abrogate State law is never implied or inferred. It is only derived from express grant, never from a general grant of power. A State policy may not be ignored by a municipality unless it is specifically empowered so to do in terms clear and explicit."
In People ex rel. Kieley v. Lent (166 App. Div. 550; affd.,215 N.Y. 626) the court said: "The intent that municipal corporations by ordinance can supersede the State law will not be inferred from general grants of power, nor will such authority be held to exist as an implied or incidental right. (Dillon, Mun. Corp. [5th ed.], § 632.) As all municipal authority comes from the Legislature, the provisions of municipal charters, however broad, are subject to such restrictions as may be imposed by general laws."
Since, then, the Hutchinson River Parkway is a public highway and local authorities are without power to levy tolls thereon, Local Law No. 5 is invalid.
The judgment should be affirmed, without costs.