Society of the New York Hospital v. Johnson

Murphy, J. Appellant is a charitable corporation which operates a mental hospital within the city of White Plains. Chapter 659 of the Laws of 1927 (an act in relation to certain streets in the city of White Plains [hereinafter referred to as the 1927 statute]), provides in part that: “ Section 1. No street or avenue or road shall hereafter he laid out or opened through or upon any of the [appellant’s] lands and premises in the city of White Plains * * * and none of said land shall be taken for any use whenever and so long as the same shall be owned or occupied for hospital purposes by The Society of The New York Hospital, provided, however, that the said The Society of The New York Hospital shall dedicate, without claim or award for damages, for street purposes, the following parcels of land, and shall, in addition thereto, provide one hundred and fifty thousand dollars for the paving and regulating of the street described in said parcels ”. Pursuant to this statute and on December 30, 1927, appellant conveyed 33 acres of land and paid $150,000 for street purposes. On January 31, 1957 respondent purported to appropriate on behalf of the State an additional part of the hospital property for highway use. On April 29, 1957, after respondent had entered upon the property and started work there, appellant, invoking the 1927 statute, commenced an action for a permanent injunction and for a judgment declaring that its property is not subject to condemnation. The order appealed from, inter alia, denied appellant’s motion for an injunction pendente lite and directed the entry of a judgment declaring the 1927 statute invalid insofar as it prohibits respondent from appropriating appellant’s land. The learned Special Term held that the 1927 statute was without binding effect and had been repealed by implication. [555] Although, the State cannot he deprived of its sovereign power of eminent domain, the 1927 statute is effective unless and until repealed. Instances of similar statutes are set forth in Matter of Board of Street Opening of the City of N. Y. (133 N. Y. 329, 333, 334). The State “cannot permanently part with it [the power of eminent domain] as -to any property under its jurisdiction, but may resume it at will ”. (People v. Adirondack Ry. Co., 160 N. Y. 225, 238, affd. 176 U. S. 335.) “ The legislature having full power to grant or withhold the exercise of the right of eminent domain, it is competent for it to provide that streets shall not be laid through cemeteries or railroad grounds, but it is also competent to reverse this policy at any time. ” (1 Lewis on Eminent Domain [3d ed.], p. 737.) It is undisputed that here there has been no express repeal of the 1927 statute. There should be convincing language before an intent to repeal is to be deemed implied in subsequent legislation (Cimo v. State of New York, 306 N. Y. 143, 148). The issue before us is whether repeal by implication has been effected by the first sentence of subdivision 3 of section 340-b of the Highway Law, which section was added by chapter 651 of the Laws of 1956, effective April 15, 1956. This sentence and the pertinent part of the succeeding sentence, read: “ Notwithstanding any inconsistent provisions of this chapter or any other law, general or special, any and all property which the superintendent of public works deems necessary for the construction, reconstruction and maintenance of interstate highways and bridges thereon shall be acquired pursuant to the provisions of any section or sections of this chapter applicable to the acquisition of land or rights and interests therein, and for the settlement of claims for damages resulting from the work of constructing, reconstructing and maintaining such interstate highways. The superintendent of public works, for the people of the state of New York, shall acquire pursuant to the aforesaid procedures any property or interest therein, necessary for any and all purposes connected with the construction”. (Emphasis supplied.) What provisions of the Highway Law and other laws did the Legislature consider inconsistent with the power of the Superintendent of Public Works to choose and acquire a site he deemed necessary pursuant to any provision of the Highway Law? The answer is evident. In section 340-a of the Highway Law specific ‘ ‘ state interstate routes ’ ’ are set forth, including a connection from one such route to another “through or northerly of White Plains ”. It is for the purpose ©f effecting this connection that respondent seeks appellant’s land. Subdi [556] vision 1 of section 340-b provides that snch routes and connections shall be designated “interstate highways”, a new type of highway in this State. Various procedures for condemnation of highways and roads are provided for in the Highway Law (§ 30 [State highways]; § 118 [County roads]; § 148 [Town roads]; § 170 et seq. [Town highways]). Reference in some instances is made to the Condemnation Law (L. 1920, ch. 923, as amd.). As to State highways, a separate procedure is set forth (Highway Law, § 30, subd. 2), with representatives of counties having a voice as to selection of land within their boundaries for access and relocated highways (Highway Law, § 30, subd. 1, pars, [a], [b]). City charters also contain procedures for condemnation of land for streets and highways (e.g., White Plains City Charter, §§ 131, 203, 207; L. 1915, ch. 356). The provision in subdivision 3 of section 340-b of the Highway Law as to inconsistent laws is related, therefore, to procedures available to the superintendent, as also appears from the use of the phrase “ the aforesaid procedures ” in the second sentence, hereinbefore quoted. There is a similar general provision, for example, in section 11-10.0 of the Nassau County Administrative Code (L. 1939, ch. 272) as to condemnation procedure, namely, that it be operative “ Notwithstanding any other general, special or local law”. Procedures have nothing to do with the efficacy of the 1927 statute. A similar situation was considered in Matter of Mayor, Aldermen & Commonalty of City of N. 7. (23 App. Div. 518), where the statute involved had provided that, except by special permission of the Legislature, no thoroughfare should be laid out through a certain cemetery. It was held that the exemption was not terminated by subsequent legislation that ‘ ‘ no limitation or restriction contained in any general or special law relating to the laying out and establishment of any street [or] avenue * * * shall affect any special proceeding heretofore or hereafter commenced to acquire title to any such street ”. So, too, in Village of Hyde Park v. Oakwoods Cemetery Assn. (119 Ill. 141, 148) it was stated: “The two acts may stand together. Under the general law, all roads and streets in the village are under its control, except the lands of the association, and as to those lands the association has exclusive control. ’ ’ Nor is the power granted to the superintendent (to acquire any and all property he deems necessary) inconsistent with the exemption. It is the usual general power delegated by the Legislature, either expressly as in this case, or impliedly, to implement selection of a site (Matter of Townsend, 39 N. Y. [557] 171, 174; Matter of Fowler, 53 N. Y. 60; Matter of City of Rochester v. Holden, 224 N. Y. 386, 391; Flatter of Hicks Development Corp. v. Village of Lawrence, 282 App. Div. 1048, affd. 306 N. Y. 922). The 1927 statute has not been repealed. Respondent is without power to appropriate appellant’s land. The order should he modified (1) by striking from the first paragraph thereof the words “ denied in all respects ” and by substituting therefor the words “ granted ” and (2) by striking from said order everything following the word ‘ ‘ denied ’ ’ in the second ordering paragraph. As so modified, the order insofar as appealed from should be affirmed, without costs, and the judgment should be vacated.