Long Sault Development Co. v. Kennedy

Willard Bartlett, Ch. J. The purpose of both of these proceedings is the same and they are substantially alike except that in one case the moving party is the Long Sault Development Company, the corporation directly interested, while in the other the petitioner is a taxpayer of St. Lawrence county, where the proposed works of the corporation are to he established. They were heard together in the Appellate Division and disposed of there as one case. The order of the Special Term contains a declaration which might preclude a consideration of the appeal if it appeared also in that of the Appellate Division, to wit: “This order is not made after a consideration of the merits, hut for the purpose of expediting a final decision *5 upon the merits in the courts of appellate jurisdiction to which appeals herein may he prosecuted.” It is contrary to the policy of our law to dispose of cases in this manner. Litigants are entitled to something more than a decision pro forma. Furthermore, a capable judge in the court of first instance ought not to deprive the parties or the appellate courts of the benefit to be derived from an actual consideration of the case on his part. The purpose of this litigation is to test the constitutionality of an act of the legislature passed in 1907 to incorporate the Long Sault Development Company and grant it an important franchise on and in the St. Lawrence river. (Laws of 1907, chap. 355.) One of the conditions upon which the grant was made was the payment of $25,000 annually into the treasury of the state. , On January 21, 1913, the Long Sault Development Company tendered the prescribed amount to the state treasurer, who declined to accept it on the ground that the attorney-general had pronounced the act of 1907 unconstitutional. These proceedings were then instituted; and after the applications had been denied at Special Term and while the appeals to the Appellate Division were pending the legislature repealed the act of 1907. (Laws of 1913, chapters 452, 453.) The statute of 1907 is entitled “An Act to incorporate the Long Sault Development Company, and to authorize said company to construct and maintain dams, canals, power-houses and locks at or near Long Sault Island, for the purpose of improving the navigation of the St. Lawrence River and developing power from the waters thereof, and to construct and maintain a bridge, and carry on the manufacture of commodities. ” It provides in the first section that five persons named therein and all who are or may be associated with them are thereby constituted a body corporate and politic under the name of the Long Sault Development Company, for the purpose of erecting, constructing, maintaining, oper *6 ating and using, in connection with the St. Lawrence river, a dam or dams, a canal or canals, a reservoir or reservoirs, a power-house or power-houses, and works ' appurtenant thereto, at or near Long Sault island in the county of St. Lawrence, and of erecting a lock or locks and works appurtenant thereto at or near the same place, or for the development of electrical power and energy and the permanent improvement of navigation on the St. Lawrence river at and above and below said place; and also of constructing and maintaining a bridge upon or in connection with said works and of carrying’ on the manufacture of commodities with the said power. General corporate powers are conferred upon the company by the second section. Then follows, in the third section, a declaration that said corporation shall have the right to construct, maintain, operate and use all such dams, canals, reservoirs, sluices, bulkheads, and appurtenant works as may be proper or useful to develop water power and electrical power therefrom, at such points on or adjacent to the south shore of the St. Lawrence river near Long Sault island or Barnhart’s island as may be selected by said corporation (but not across the international boundary line unless consented to by the Dominion of Canada); and also in and upon so much of the river and béd as lie south of the international boundary line in the same locality. The company is also given the right to erect and maintain power-houses; to take and use the waters of the river at and above the points of location of the authorized works; and to construct toll bridges over and in connection with the same, for foot passengers, animals and vehicles. These rights are declared to be granted upon certain specified conditions, the most important of which is “that the rights hereby granted shall never be so used as to impair or obstruct the navigation of the St. Lawrence river, but, on the contrary, that such navigation shall be preserved in as good condition as, if not better than, the same is at present, *7 regard being always had to the amount of the natural flow of water in said river as affecting its navigability from time to time.” The fourth section of the statute provides that after Congress shall have authorized the construction of the dams, locks and canals authorized by the act, and after the corporation has paid the fixed sum of §10,000 into the state treasury, then “ the commissioners of the land office shall, upon the application of said corporation, grant unto it the title and interest of the people of the state in and to lands under the waters of the St. Lawrence river to be covered or occupied by said works and locks and power-houses; ” in consideration of which conveyance, as well as of the rights and privileges granted by the act, the corporation shall make certain specified payments into the state treasury which shall amount to not less than §25,000 per annum after the year 1911. The Long Sault Development Company was duly organized under the act, and developed a plan for the construction of the works thereby authorized in co-operation with a Canadian corporation owning power on the other side of the river — the St. Lawrence Development Company, Limited. In necessary preliminary work, the acquisition of lands and riparian rights, and the payment of taxes, the Long Sault Development Company claims already to have expended upwards of §750,000. As is generally known, the celebrated Long Sault rapids constitute a substantial obstacle to the navigation of the St. Lawrence for commercial purposes, being navigated by only one line of passenger boats during the tourist season. In the petition in this proceeding the effects of the proposed scheme on navigation are summarized as follows: “The river, which at Long Sault is now practically unnavigable, will become navigable for all classes of vessels. Both of the contemplated locks will be continuously operated during the navigation season toll free. *8 Eeliable and economical power will be made available within the radius of transmission of electricity from the power houses. New industries will thereby be created. There will be increased quantities of products from manufacturing plants utilizing the power, which products must be distributed by boat or rail.” The first obstacle that confronts the appellants in this case is the repeal of the statute under which the petitioning corporation was organized and by which its franchises were acquired. The repealing act sets forth four grounds upon which the legislature deems the repealed act to be unconstitutional, but it adds that ‘ ‘ The enumeration in this act of the grounds for such repeal shall not be deemed to qualify or impair the full force and effect of the repeal.” (L. 1913, ch. 452, section 4.) This provision, as it seems to me, makes the repeal effective, irrespective of the reasons assigned therefor. The repeal, however, could not operate to confiscate any valid franchise or property right which the Long Sault Development Company had previously acquired under the act repealed. (People v. O'Brien, 111 N. Y. 1.) We are, therefore, called upon to consider and determine whether the legislature possessed the constitutional power to convey away the state control over the navigation of the St. Lawrence river to the extent attempted by the act of 1907. The power of the legislature to grant land under navigable waters to private persons or corporations for beneficial enjoyment has been exercised too long and has been affirmed by this 'court too often to be open to serious question at this late day. (Lansing v. Smith, 4 Wend. 9; People v. N. Y. & Staten Island Ferry Co., 68 N. Y. 71; Langdon v. Mayor, etc., of N. Y., 93 N. Y. 129.) The contemplated use, however, must be reasonable and one which can fairly be said to be for the public benefit or not injurious to the public. “ For every purpose which may be useful, convenient or necessary to the public, the state has the unquestionable right to make grants *9 in fee or conditionally for the beneficial use of the grantee, or to promote commerce according to their terms. The extensive grant to the city of New York of the lands under water below the shore line around Manhattan Island clearly comes within this principle, since it was a grant to a municipality, constituting a political division of the state, for the promotion of the commercial prosperity of the city, and, consequently, of the people of the state. So, also, grants to railroads for rights of way and other facilities for the transaction of their business, made under the authority of the state, have been held valid upon the same principle, as well as to corporations and private persons engaged in commerce or-navigation for their necessary or reasonable use. Grants to the owners of the adjoining uplands, either for beneficial enjoyment or for commercial purposes, have long been authorized and recognized as one of the uses to which the state may lawfully apply such lands.” (Coxe v. State of N. Y., 144 N. Y. 396, 407.) If the grant to the Long Sault Development Company fell within any of these classes it could not well be assailed. But in substance and effect it is very much broader. It virtually turns over to the corporation entire control of navigation at the Long Sault Rapids (provided, of course, that the consent of Congress can be obtained). All that the corporation must do is to construct the contemplated works, pay the stipulated sums and keep the navigation as good as it is now. No matter how much the interests of the public may demand the improvement thereof in the future, the state will be powerless to act either directly or by constraint upon the corporation. It is precisely as though the legislature should confer upon a corporation exclusive authority to construct works on the Hudson river to improve the navigation between Albany and Troy upon condition that such navigation shall be preserved in as good condition as the same is at present, and thereby preclude the state from ever hereafter *10 improving the navigation itself. In my opinion the legislature cannot make such a contract in behalf of the state. In Illinois Central Railroad Co v. Illinois (146 U. S. 387) the attempted alienation of 1,000 acres of the harbor of Chicago was condemned on account of the extent of the area granted. Here the grant is objectionable on account of the abdication of the state’s control over waters which are still to be preserved as navigable but which are to be turned over wholly to the dominion of a private corporation. In this discussion I assume that the improvement of navigation was a real, even if subsidiary, purpose of the enactment and not merely a cloak for a power development project. The point that I desire to emphasize is that the legislature cannot authorize the conveyance of a. navigable portion of the St. Lawrence to a private company to maintain and control navigation thereon, thereby parting for all time with its own power to improve such navigation. The privilege of the state to control the St. Lawrence as a navigable river (subject to the direction of Congress) cannot be assigned to others in the manner attempted by this legislation. As long as the waters are maintained as navigable they remain public waters of the state; and as long as they remain public waters of the state the state is bound to retain control over them in the public interest. “The State can no more abdicate its trust over property in which the whole people are interested, like navigable waters and soils under them, so as to leave them entirely under the use and control of private parties, except in the instance of parcels mentioned for the improvement of the navigation and use of the waters, or when parcels can be disposed of without impairment of the public interest in what remains, than it can abdicate its police powers in the administration of government and the preservation of the peace.” (Illinois Central Railroad Co. v. Illinois, supra, p. 453.) There are many other interesting features in this case; *11 but it is not necessary to discuss them if I am right in the conclusion which has been stated. If the abdication of state control over the St. Lawrence as a navigable river at the Long Sault vitiates the entire statute, as I think it does, it follows that neither the Long Sault Development Company or its successors in interest, if it be deemed dissolved, have any rights against the state or its officers to be enforced by mandamus or otherwise. The orders appealed from should be affirmed, with costs.