In re Woolsey , 36 N.Y. Sup. Ct. 626 ( 1883 )

Barnard, P. J.:

By chapter 461, Laws of 1871, the legislature revised the charter of Long Island City. A uniform system of street openings was established by the charter, and the highways thereof were put under the common council as commissioners of highways exclusively. In 1878, by chapter 410 of the laws of that year, the legislature appointed commissioners to widen Flushing avenue to the uniform width of sixty-five feet. For the purpose of the act these commissioners were clothed with the power given by the charter to the common council. By chapter 318, Laws of 1880, the powers of the commissioners were increased, and fhe work to be done. By chapter 326 of Laws of 1881, the scope of the work was again enlarged and the commissioners were authorized to issue certificates to the amount of $150,000, and the avenue or street was to be widened to the full width of eighty feet from Yan- Olst avenue to the east bounds of the city.

By section 18 of article 3 of the Constitution it is provided that, “ The legislature shall not pass a private or local bill * * * * laying out, opening, altering, working or discontinuing roads, highways or alleys.” ■ '

The question presented is whether the acts in relation to Flushing avenue are repugnant to the Constitution. The bill is a local bill. It refers to a single highway in a specified city. It relates to a particular street of a class in one place. (Matter of N. Y. Elevated R. R. Co., 3 Abb. N. C., 401.)

The provision of the Constitution in question “ was designed to prevent any interference with the general highway system of the State, or with the keeping of the ordinary highways and public roads in repair under that system and the supervision of the officers designated, and in the use of the means and the labor provided by law.” (People v. Banks, 67 N. Y., 568.)

This language is so clear and explicit that there can be no doubt, unless it be held that the term “ roads, highways and alleys,” do not include city streets. In the case of The People v. Banks (67 N. Y., 568), the Court of Appeals held that a transfer of a turnpike to park commissioners by legislative permission, was constitutional under this section; that the act did not alter, open or work a highway. The general law did not reach the case, and therefore the turnpike might be graded, paved, sewered and ornamented- by legislative authority. The present case is very different; here the street is to be widened as a street or public avenue, and the general laws do not cover such a case. The city could open the same under its power, except that by the legislative act a consent upon the part of land owners is dispensed with. ' In. other cases a majority of the local feet is required; in this case the will of the legislature is sub-stituted. (Chap. 461, Laws of 1871, tit. 3 ; chap. 2, §§ 1, 2.) That city streets are included in the language “ roads, highways and alleys,” is evident from the city charter itself. The common council is now “ commissioners of highways in and for said city.” A highway is differently known in the law of the State, it includes all public thoroughfares ; it includes streets and alleys and roads; it has no restriction to place; it may be of any width.

The case to which we are cited (Matter of Lexington Avenue, 29 Hun, 303) is not like the present case. There the legislature directed the city officers to open an avenue. The avenue was opened under tbe law applicable to all other avenues and by tbe proper officers, wbo were charged by tbe charter of tbe city with that duty.

The constitutional provision was designed for cases similar to this. Before the passage of tbe amendment in 1814, it was a common thing for tbe legislature to open boulevards, avenues and public roads, some in cities, some in the country and some extending from city to country. Tbe method pursued in tbe present act was tbe method then generally pursued. It became a great burden to the taxpayer and land owner, and hence this amendment. If it only is to be deemed to apply to tbe country districts of tbe State, it will only reach where the injury was infrequent and insignificant. Tbe cities furnish tbe greatest temptation for these commissions, which can take land without the consent of the owner, as under the general law it would not be right to do.

I think the order confirming the report should be set aside, with costs and disbursements.

Dykman and Pratt, J.L, concurred.

Order confirming report of commissioners vacated, with costs and disbursements.