(dissenting). I dissent and vote to grant judgment for the defendants. The majority has based the result upon two grounds: First, that Local Law No. 5 is in contravention of section 54 of the Vehicle and Traffic Law; second, that section 4 of the Westchester County Charter must be limited to granting complete power only over those matters relating solely to local affairs of the county.
Local Law No. 5 is not in contravention of section 54 of the Vehicle and Traffic Law unless it is found that the Hutchinson River parkway is a highway as defined by section 2 of the Vehicle and Traffic Law or some other statute of general application. In my opinion, no such finding can be made without disregarding completely the decision of the Court of Appeals in Matter of County of Westchester (H. R. Parkway) (246 N. Y. 314). There it was distinctly held that the. nature of this parkway is to be determined, not by any definition appearing in a general statute, but solely by reference to the Westchester County Park Commission Act. (Laws of 1922, chap. 292.) It was held that under that act the parkway is not a highway; it is a part of a park. It seems to me that if we now say that the decision was confined to a construction of section 90 of the Railroad Law, we will overlook the reasoning of the court. If the parkways of Westchester county are not highways because the Park Commission Act defines them otherwise, then they cannot *774be highways under any general statute whatever. The definition of public highways appearing in section 2 of the Vehicle and Traffic Law has no application. In the foregoing case the Court of Appeals took notice of that definition, which then appeared in section 281 of the Highway Law. At that time the definition expressly included parks and parkways. Nevertheless it was held that such definition is not controlling; that the parkways of Westchester county are defined elsewhere; and that under the true definition, applicable to these parkways alone, they are parks and not highways. That being the case, the limitations imposed by section 54 of the Vehicle and Traffic Law with respect to public highways should not control the disposition of this case. I
In spite of the general language of section 4 of the Westchester County Charter, which purports to confer upon the county all the powers which might be granted by the Legislature within the limits of the Constitution, I think there can be little doubt as to the extent of the power intended to be delegated. Section 3 of the charter vests in the county all the powers conferred by general law. Thus the county, under section 340 of the County Law, has powers of local legislation and administration and the power to adopt and amend local laws in relation to the property, affairs and government of the county, which shall be county wide in operation and effect. Subdivision 2 of section 7 of the charter specifically confers upon the county all powers of local legislation and administration as provided by section 26 of article 3 of the Constitution of the State of New York. In short, Westchester county has been given in these sections of its charter those powers for which the Constitution expressly provides, namely, powers of local legislation and administration and the power to pass any local law relating to the property, affairs or government of the county.
If without including section 4 in the county charter, the other sections of the charter mentioned gave to the county power to adopt and amend local laws in relation to its property, affairs and government, and if section 4 is to be limited as urged by the majority, then the Legislature has done a useless and futile thing, and used broad and comprehensive language that is meaningless.
It was the apparent intention of the Legislature to grant by section 4 every power that it could grant within the limits of the Constitution. Its purpose was to give to the county home rule in its broadest constitutional terms and to enable the county to legislate concerning the government of the county without constantly returning to the Legislature for additional powers and to prevent a recurrence of a multitude of special acts amendatory of the county’s organic law. If that was the purpose, does Local Law *775No. 5 come within the confines of the powers granted? It is conceded that the Legislature could, by express language, grant power to pass such local legislation as is here involved. I believe that an analysis of the power exercised demonstrates that the grant may be implied from the comprehensive language of section 4.
The local law is effective only within the county. It is a service charge imposed for the use of county-owned property, under the sole control of the county, and was enacted for the benefit of the county and its taxpayers. It is in payment of a distinct service rendered to the motorist using a county-owned facility. In sections 4 and 10 of the Westchester County Park Commission Act appears the legislative declaration that the acquisition, construction and maintenance of these parkways is a county purpose. By that act the county was empowered to finance the project by the issuance of county bonds. What the local law proposes is simply to provide an additional means of defraying the cost of a local improvement. It is clear that this is local legislation relating to the property and affairs of the county.
That the power to impose tolls may be conferred without express language in the enabling act is illustrated by the case of Robia Holding Corp. v. Walker (257 N. Y. 431). There the power was found in provisions of the local charter authorizing the city of New York to construct bridges and to issue bonds for revenue-producing improvements. Here the county is authorized, in the Park Commission Act, to construct, maintain and finance parkways, and, in its charter, to legislate with respect to its property and affairs. To my mind the grant of power is at least as plain in the latter case as in the former.
In such a grant of power is there anything forbidden by the Constitution? As a general proposition the Legislature may not delegate its legislative prerogatives, because section 1 of article 3 of the Constitution provides that “ the legislative power of this State shall be vested in the Senate and Assembly.” To this general rule there is a well-recognized exception in the provisions of the Constitution itself providing for local self-government. (Matter of Mooney v. Cohen, 272 N. Y. 33.) The grant of legislative power to counties adopting optional forms of local government is authorized by section 26 of article 3 of the former Constitution and by section 2 of article 9 of the present one. That the power has been conferred in general language may not be an objection so long as the limitations of the Constitution are not exceeded. Here, the grant of power does not seem to be in excess of that permitted by the Constitution, but on the contrary it is framed in substantially the same language as the Constitution itself employs.
*776On submission of controversy on an agreed statement of facts, judgment directed for plaintiff, without costs, declaring and adjudging the adoption of Local Law No.'5, imposing a toll upon the use of the Hutchinson Biver parkway by motor vehicles, to be in excess of the powers of the county of Westchester or of the Westchester county park commission, and enjoining and restraining the imposition and collection of such tolls thereunder.