I dissent from the decision about to be made which is based upon the conclusion that Hutchinson River Parkway is a public highway for the use of which the exaction of a motor vehicle toll is prohibited by section 54 of the Vehicle and Traffic Law.
It must be admitted at the outset that Hutchinson River Parkway — to which, for convenience, I shall refer as the parkway — is so located and has been so improved that it may be reached at either end and at intermediate points by through motor traffic which formerly may have used the Boston Post Road and other through routes between the *Page 233 city of New York and points eastward in the New England States. I do not believe, however, that the plaintiff's case is helped by that fact.
The parkway is not built along an old, established public highway, but has been constructed on new location through lands acquired by Westchester county solely for park purposes. Upon this four-lane motorway traffic risks at intersections have been reduced by separating the grades of the intersecting roads and along its total length the parkway passes through park lands beautified by landscaping and planting of rare quality. Thus constructed the parkway does not lose its character as a park road because motorists in great number, some of whom are bound for distant points, may choose to take advantage of a county park facility which serves for sixteen miles to make of motoring a recreation.
We should not disregard the fact that it was to promote health and outdoor recreation — in line with an enlightened appreciation of the social responsibilities of both State and local agencies — that the defendant Westchester County Park Commission was created by the Legislature (L. 1922, ch. 292) and later constructed the parkway with the control of which we are now concerned. Having already entered upon a broad program for the creation and maintenance of State parks in the interest of the health and welfare of the People of the State, the Legislature granted to the defendant Park Commission, as a statutory agency of Westchester county, a charter which authorized the acquisition of land for county parks for the declared purpose of promoting "public health, public welfare, education, * * * recreation, * * * or amusement." (L. 1922, ch. 292, §§ 3, 10.) By section 3 of the same charter the Legislature defined a "park" as including all "parkways" and "boulevards" with entrances and approaches thereto and any "streets" or "roads" which pass through such park. It would seem clear, therefore, that in authorizing the defendant Commission to acquire, improve and manage parks and to build roads, boulevards and parkways, the *Page 234 Legislature anticipated and intended that traffic from connecting highways would take advantage of the improved park facilities. Otherwise how could the parkway be put to use? How could it serve to accomplish the legislative purpose of promoting public health and recreation?
As a further indication that the Legislature did not intend the parkway to be a public highway subject to the regulatory prohibitions of section 54 of the Vehicle and Traffic Law, section 17 of the defendant Commission's charter gives to it the "exclusive" power, "notwithstanding the provisions of anygeneral or special law to the contrary," to adopt rules, regulations and ordinances governing the use of parkways and the control of traffic through the same. In Maltby v. County ofWestchester (267 N.Y. 375, 378), this court interpreted the legislative grant of power to the present defendant Park Commission as giving to it "* * * the sole and exclusive control and management of all streets and highways and bridges within the limits of any park under its jurisdiction, with the right and power to alter or discontinue them, and may make rules and regulations and ordinances for the use of the park." It also appears from the case last cited that when the State undertook at State expense to connect outside highway routes with the defendant county's parkways, it did not treat the parkways as State highways but accomplished that purpose by means of legislation which made the present defendant Park Commission a "temporary agent of the State." (See Paige v. State of NewYork, 269 N.Y. 352, 356; L. 1932, ch. 559, § 1.)
Furthermore, on two prior occasions this court has been required to determine as a matter of law whether this particular parkway was a park facility or a public highway, and in each instance it has ruled it was the former. In Matter of County ofWestchester (Hutchinson River Parkway) (246 N.Y. 314) the opinion by Judge O'BRIEN points to characteristics peculiar to the parkway and refers specifically to the fact that in the charter of the defendant Park Commission the Legislature defined "park" as including *Page 235 "parkways." This definition and the consideration of other facts led the court to conclude that "The Hutchinson River Parkway does not seem to us to be `a street, avenue, highway or road' within the meaning of section 90 of the Railroad Law. * * * It is a park" (p. 318). I do not share the view of a majority of the court that the statement last quoted was not determinative of issues there decided. The point there in controversy required the court to determine whether the parkway was a street, avenue, highway or road within the meaning of section 90 of the Railroad Law. In doing so it gave consideration not only to the defendant Park Commission's charter but also to the physical characteristics of the parkway itself as finally constructed. The court appears to have had no doubt as to what was determined in the Westchester County case (supra) when later, inWestchester Electric R.R. Co. v. Westchester County ParkCommission (255 N.Y. 297), it reiterated its ruling upon that point in the introductory statement of the opinion: "The Hutchinson River Parkway, which is a park [citing Matter ofCounty of Westchester, supra], was laid out by defendant Commission * * *" (p. 299).
If, therefore, as I believe, the parkway is a park facility — not a public highway within the prohibition of section 54 of the Vehicle and Traffic Law — there remains for consideration the question whether the Board of Supervisors of Westchester county had the power to enact Local Law No. 5, which makes provision for the collection of motor vehicle tolls for the use of the parkway.
The authority of Westchester county, acting through its agent, the defendant Park Commission, to acquire lands for park purposes and to build parkways, has not been questioned. Nor can there be doubt that, in offering to public use the wide variety of park facilities which that county now affords and in the maintenance and control of those facilities, the county acts in a proprietary capacity — not governmental. What was said by Judge POUND inAugustine v. Town of Brant (249 N.Y. 198) in reference *Page 236 to the maintenance and control of a park by a township applies with equal force to the defendant county's function in its control of the parkway (p. 204): "The establishment of town parks is not a public duty imposed upon the town and the town does not act as an agent of the State when it avails itself of the privilege of maintaining them. * * * When the town assumes the authority to own and maintain parks, it goes outside the political power of a local subdivision of the State to engage in a quasi private undertaking" (p. 205). (Cf. Collentine v.City of New York, 279 N.Y. 119, 124.)
If, therefore, Westchester county's function in the construction and maintenance of the parkway was in character proprietary, it follows, as the term implies, that the county in its private capacity — as proprietor — has the power to control the use of its parkways free from State control. If proof is needed that the State has formally recognized the defendant county's freedom from the prohibition against the collection of tolls contained in section 54 of the Vehicle and Traffic Law, I point again to section 17 of the defendant Park Commission's charter (L. 1922, ch. 292, § 17), by which the Legislature acknowledged the Park Commission's "exclusive power to adopt and enforce rules, regulations or ordinances governing the use of said park * * * and traffic in and through the same." The significant fact is that in its declaration of "exclusive power" the Legislature inserted the provision that it existed "notwithstanding the provisions of any general or special law to the contrary."
In addition to the implied power of the defendant county, functioning in its proprietary capacity, to collect tolls as an incident to the control of the parkway, I find in various statutes a delegation of power — if such a delegation of power be needed — broad enough to authorize the exercise of authority which the Board of Supervisors invoked when Local Law No. 5 was adopted. The charter granted to the county of Westchester by chapter 617 of the Laws of 1937 is the Legislature's answer to a demand by the people *Page 237 of that county for a broader measure of home rule in accord with sections 26 and 27 of article III of the Constitution, effective in 1937. (State Const. of 1938, art. IX, §§ 2, 3, 4.) When the new county charter became effective on January 1, 1939, section 69 thereof specifically continued the defendant Park Commission as a county agency and authorized it to exercise such powers and perform such duties as are "conferred or imposed on it by law, not inconsistent with the provisions of this act * * *." Previously, by section 4 of chapter 292 of the Laws of 1922, the Legislature had declared that "The acquiring, improving and embellishment of parks under the jurisdiction of the park commission or lands acquired as in this act provided, together with the maintenance thereof and all incidental proceedings in connection therewith for the purpose of carrying out the provisions of this act are hereby declared to be for a countypurpose."
Such a legislative declaration of purpose was lacking inAdler v. Deegan (251 N.Y. 467), where the application of the constitutional amendment giving home rule to cities was involved. Despite that lack, however, the concurring opinion by Chief Judge CARDOZO states (p. 484): "Many welfare measures are city affairs solely. If a city lays out a park * * * it is exercising the police power, and is acting for the welfare of its inhabitants, yet acting in a matter that is distinctively its own affair, a matter that is bound up with its own business, its own finances, its own corporate activities."
Treating the construction, management and control of the parkway as a "county purpose" within the legislative declaration quoted above, and assuming that the Legislature itself could authorize by statute the collection of motor tolls for the use of the parkway (Robia Holding Corp. v. Walker, 257 N.Y. 431,436, 437; Town of Oyster Bay v. Moses, 248 App. Div. 598; affd., 273 N.Y. 631; Huse v. Glover, 119 U.S. 543, 548), I find in the defendant county's charter (§ 4) power delegated by the Legislature broad enough in scope to authorize the enactment of Local Law No. 5. That section provides: *Page 238
"§ 4. Enumerated powers not exclusive. 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 powers necessarily incident or fairly to be implied, not inconsistent with the provisions hereof. * * *."
There is no need to extend beyond their fair intendment the Legislature's words of grant last quoted. The delegation of power is in broad terms — broad enough, as I believe, to authorize the enactment of the local law here in question. It is not for us to question as a matter of public policy the extent of power so delegated. "The wisdom or unwisdom of the statute is a matter for the Legislature and not for the courts, which cannot legitimately question the policy or condemn the effects of any law consistent with the organic law of the State and nation." (Gautier v.Ditmar, 204 N.Y. 20, 30.)
The judgment entered upon the decision of the Appellate Division should be reversed and judgment granted in favor of the defendants upholding the validity of Local Law No. 5, with costs.
LEHMAN, Ch. J., LOUGHRAN and SEARS, JJ., concur with CONWAY, J.; LEWIS, J., dissents in opinion, in which FINCH and RIPPEY, JJ., concur.
Judgment affirmed. *Page 239