People ex rel. Townsend v. Porter , 33 N.Y. Sup. Ct. 622 ( 1882 )

Hardin, J.:

Chapter 415 of the Laws of 1881 contains an act of the last legislature entitled “ An act to establish the Niagara Police District .and provide for the government thereof.”

The act declares certain territory described therein which includes the villasres of Niagara Falls and Suspension Bridge, and small parcels of land lying between, “a separate police district to be known as the Niagara Police District,” and it also declares a police department is hereby established therein, and a police justice and three police commissioners shall be appointed for the same with the powers and duties in this act provided.”

The sixteenth section of the act contains the following provision, viz.: “ And all lock-ups, station-houses or places for such detention in either of the villages of Niagara Falls or Suspension Bridge, in use at the time this act shall take effect, are hereby placed under the control and direction of the said board of police.” ,

Thus we have a clear attempt to create an independent civil-division not known to the Constitution, and to transfer to and deliver over to it by a legislative act the property of incorporated villages without the consent of said villages and without compensation to them.

The legislature has no such power conferred upon it, and its act is in excess of its discretion and power. The property of the municipality cannot thus be transferred to such a new organization. Such an act is in violation of the Constitution.

The principles laid down by the Court of Appeals in People ex rel. Bolton v. Albertson (55 N. Y., 50) condemn the act under consideration. It was therefore properly held, as stated in the opinion of the learned judge at Special Term, to be unconstitutional and void. The president and trustees of Niagara Falls were justified in refusing to surrender control of the lock-ups and property belonging to their corporation.

The mandamus was properly denied. And I therefore advise the affirmance of the order made at Special Term.

Order affirmed, with costs.

Dwight, J., concurred.

Smith, P. J., dissents, being of the opinipn that the case is distinguishable from The People ex rel. Bolton v. Albertson (55 N. Y., 50), and is controlled by The People ex rel. Wood v. Draper (15 N. Y., 532) and The People v. Shepard (36 N. Y., 285), the latter case being regarded as not having been overruled by the Albertson case.

Order appealed from affirmed, with costs.