Long Sault Dev. Co. v. Kennedy

• Decision Date: 09 June 1914
• Citation: 212 N.Y. 1,105 N.E. 849
• Parties: LONG SAULT DEVELOPMENT CO. v. KENNEDY, State Treasurer. PEOPLE ex rel. BALL v. SAME.
• Court: New York Court of Appeals Court of Appeals

212 N.Y. 1

105 N.E. 849

LONG SAULT DEVELOPMENT CO.

v.KENNEDY, State Treasurer.

PEOPLE ex rel. BALL

v.SAME.

Court of Appeals of New York.

June 9, 1914.

Appeal from Supreme Court, Appellate Division, Third Department.

Application by the Long Sault Development Company for a writ of mandamus against John J. Kennedy, as State Treasurer, to compel respondent to accept from petitioner the sum of $25,000 as a payment due to the state under Laws 1907, c. 355, and application by the People, on relation of G. Wilson Ball, for a writ of mandamus against the said John J. Kennedy, as State Treasurer, for the same relief. From a judgment of the Appellate Division affirming an order of the Supreme Court of Albany County denying the relief prayed (158 App. Div. 398,143 N. Y. Supp. 454), the petitioner in one case and relator in the other appeal. Affirmed.Henry W. Taft, of New York City, for appellant Long Sault Development co.

Clarence S. Ferris, of Potsdam, for appellant Ball.

Edgar M. Cullen and William N. Dykman, both of Brooklyn, for interveners Lawyers' Title Insurance & Trust Co. and others.

Thomas Carmody, Atty. Gen., for respondent State Treasurer.

WILLARD BARTLETT, C. 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 be 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, but for the purpose of expediting a final decision upon the merits in the courts of appellate jurisdiction to which appeals herein may be 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, c. 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, cc. 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, operating,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 by 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 bed as lies 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, 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. T~he 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. Reliable 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.’

[1] 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.’ Laws 1913, c. 452, § 4.

This provision, as it seems to me, makes the repeal effective, irrespective of the reasons assigned therefor.

[2] 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, 18 N. E. 692, 2 L. R. A. 255, 7 Am. St. Rep. 684. 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.

[3] 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, 21 Am. Dec. 89;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 in fee or conditionally for the beneficial...