Opinion
September 15, 1909.
John J. Linson, Howard Chipp and Francis Key Pendleton, for the appellant.
Harrison T. Slosson and Arthur A. Brown, for the respondent.
The appellant's contention is that section 42 of chapter 724 of the Laws of 1905, as amended by chapter 314 of the Laws of 1906, conflicts with the 14th amendment of the United States Constitution. The privileges and immunities referred to in section 1 of the amendment are those only which arise under the Constitution of the United States, and not those which arise under that of the State. But, passing this point, and assuming that the section in question is included in the words "any law," there is then no ground for the claim that it is in conflict with the amendment and incapable of enforcement. The right of eminent domain forms no part of that body of political and civil rights which are protected and secured by the Federal Constitution. No municipality or other corporation has an inherent right to the power. It is an attribute of sovereignty. It belongs to the State, and with the conditions the State may impose for the gift or grant the United States, a separate sovereignty, has no right to interfere. There is no restraint upon the Legislature in delegating this power, save the provision in the Constitution of the State (Art. 1, §§ 6, 7) that the use must be public, compensation must be given, and when the compensation is not made by the State, it must be ascertained by a jury, or by not less than three commissioners appointed by a court of record. ( Brooklyn Park Comrs. v. Armstrong, 45 N.Y. 234; Matter of Union E.R.R. Co. of Brooklyn, 112 id. 61; Mott v. Eno, 181 id. 346.)
It is clear, I think, that these provisions do not require the Legislature to act uniformly or according to any particular rule, in conferring this power upon individuals or corporations. The Legislature as the depository of this sovereign power is the sole judge of the expediency and necessity of the exercise of the power and the extent to which the exercise of it shall be carried and the propriety and utility of the conditions to be imposed. It may not only determine the time and the occasion and as to what particular property it shall be exercised, who and how many shall receive the right, but it may impose any condition on the grant of power, whether precedent or subsequent, which it believes to be equitable, or it may deny the right absolutely.
It is to be observed also that after the power is conferred it is subject to be increased, restricted or repealed at the will of the Legislature, vested rights acquired thereunder, as under all statutes, only remaining unaffected.
I am, therefore, of the opinion that the 14th amendment has no application. But if it were not so, if the condition was a violation of the Federal or State Constitution, the city could not take advantage of the invalidity, for the city took the right of eminent domain with the condition among others that it should pay the damages to an established business. The act was not mandatory. It conferred a privilege which the defendants were at liberty to exercise or not as they saw fit. By accepting the power conferred by the statute and taking the land upon which the business was conducted under it, they agreed to the conditions and have no standing to raise the question of constitutionality.
This was the rule laid down in the case of People v. Murray (5 Hill, 468) where the defendants claimed that the act under which they had built a dam across the Genesee river was unconstitutional, for the reason that it authorized a proceeding not according to the common law, and deprived the parties of the right of trial by jury. The court said: "The short answer is, that the defendants took the grant to build the dam with this condition attached to it, and they are not now at liberty to make the objection, though, under other circumstances, it might have been effectual." To a similar effect are other cases. ( Mayor v. Gorman, 26 App. Div. 191; Matter of Comesky, 83 id. 137; Sherman v. McKeon, 38 N.Y. 266; Vose v. Cockcroft, 44 id. 415; People v. Fire Assn. of Philadelphia, 92 id. 311; Board of Suprs. of Seneca v. Allen, 99 id. 532; Beetson v. Stoops, 186 id. 456.) I do not deem discussion necessary as to the other questions raised. The order appealed from should be affirmed, with costs.
Order unanimously affirmed, with costs.