(dissenting). We are considering here an issue vital to all persons owning property adjacent to or in view of a State highway.
The Superintendent of the New York State Department of Public Works, appellant, contends that pursuant to section 30 of the Highway Law he has the power of eminent domain to restrict the use of respondents’ property adjacent to Route 17 with a “ Permanent Easement Restricting Signs, Billboards, Notices, Posters, Advertising Devices or Other Displays.” *278If the right does exist it is, of couse, tantamount to the power to completely regulate roadside advertising along and within normal visual acuity of State highways.
The question presented is not whether certain roadside advertising constitutes a hazard to highway safety or whether the Superintendent has acted reasonably but is rather, has the Legislature delegated to the Superintendent of Public Works the power to condemn such an easement?
Section 30, relied upon by the Superintendent, provides no such authority. The specific language referred to as in support of appellant’s position, i.e., “ acquire by appropriation any and all property ” necessary “ to improve safety conditions on the state highway system ” must be considered in context.
The section, as interpreted by the majority, gives to the Superintendent of Public Works, subject only to his intendment of what is reasonable, the right to invade private property whether adjacent to or remotely removed from the road itself.
Section 30 was substantially changed by chapter 544 of the Laws of 1944. Included as part of the omnibus amendment was the ‘ ‘ safety ’ ’ reference. The pertinent part of section 30 has not been changed since its amendment in 1944 and it reads as follows:
“ § 30. Acquisition by the state of property required for the construction and reconstruction of state highways and structures thereon. * * *
“ 2. The superintendent of public works, for and in behalf of the people of the state of New York may acquire by appropriation any and all property necessary for the construction, reconstruction and improvement of state highways and bridges or culverts on the state highway system, including the appropriation of property for drains, ditches, spoil banks, gravel pits and stone quarries; also for the removal of obstructions, improvement of sight distances; also for appropriation of property for the reconstruction of existing highway-railroad separation structures and for the separation of highway-railroad grades on newly laid-out highways; and for other purposes to improve safety conditions on the state highway system.” (Emphasis added.)
In context the emphasized portion clearly refers to such acquisitions of property for safety purposes as would be concordant with takings for construction and reconstruction of State highways as implied in the title of the section. An examination of the background of the 1944 amendment readily demonstrated that this was its purpose. The bill was a departmental bill proposed by the Department of Public Works. In a mem*279orandum, contained in the Governor’s Bill Jacket, from the Superintendent of Public Works and the Commissioner of Highways submitted to the Governor’s counsel recommending approval of the bill, it was stated:
“ This bill proposes to repeal the provisions for the acquisition of rights of way for state highways by counties, and also proposes to substitute the procedure for the acquisition of such property by the State. * *
“ The proposal in this bill is to authorize the Superintendent of Public Works to acquire by appropriation any property that he deems to be necessary for the construction and reconstruction of a state highway and structures thereon.” (Emphasis added.)
Similarly in reference to chapter 544, the Commissioner of Highways stated in the annual report of the Superintendent of Public Works for the year 1944: “ This is the first time it has been possible for this Department to promulgate any definite highway program, because of the fact that heretofore the consummation of any program which might be instituted by the Department was entirely dependent upon the willingness and ability of the counties to acquire the necessary rights of way for the construction of the improvements. This insurmountable object to a planned program of work was eliminated in 1944 through the enactment of legislation which provides that the State shall acquire title to all rights of way needed in connection with State highway construction.” (N. Y. Legis. Doc., 1945, No. 60, pp. 40-41; see, also, pp. 4, 23-25.)
There is no mention or suggestion that the Legislature by the amendment of section 30 ever intended to confer upon the Superintendent of Public Works the power to appropriate an easement restricting roadside advertising in the interest of highway safety.
It is well-established law that a statute conferring the power of eminent domain is not to be extended by inference or implication (McKinney’s Cons. Laws of N. Y., Book 1, Statutes, § 293, pp. 335, 336; see Society of N. Y. Hosp. v. Johnson, 5 N Y 2d 102, 107; Ontario Knitting Co. v. State of New York, 205 N. Y. 409, 416).
The various cases cited by the majority are not controlling. Matter of Bushwick Ave. (48 Barb. 9) and Matter of City of New York (Clinton Ave.) (167 N. Y. 624) were governed by special acts of the Legislature giving the City of New York the necessary authority to widen and otherwise improve the streets involved.
*280Fifth Ave. Coach Co. v. City of New York (194 N. Y. 19) involved the exercise of police power, not the exercise of eminent domain.
An examination of the section and of the history surrounding it is conclusive that it was never intended to be used for the purposes suggested herein. If the majority is to be sustained then whether land borders on the road or is remotely removed but within normal visual acuity of the road is immaterial. The latter is a marked departure and a new perception of the rights of the State to restrict private property and seriously impinges upon constitutional guarantees. Such a concept was not contemplated within the ambit of section 30 (supra). The restriction and regulation of advertising devices within 500 feet of the edge of the pavement of the Thruway were accomplished by a specific act of the Legislature. (Public Authorities Law, § 361-a; L. 1952, ch. 593.)
There is no authority for the taking of the easement by eminent domain as here suggested by the majority and the order denying the motion to dismiss the complaint should be affirmed.
Coon, Gibson and Reynolds, JJ., concur with Bergan, P. J.; Herlihy, J., dissents and votes to affirm.
Order reversed and complaint dismissed, without costs.