Van Brunt v. Town of Flatbush

• Decision Date: 02 June 1891
• Citation: 27 N.E. 973,128 N.Y. 50
• Parties: VAN BRUNT et al. v. TOWN OF FLATBUSH et al.
• Court: New York Court of Appeals Court of Appeals

128 N.Y. 50

27 N.E. 973

VAN BRUNT et al.

v.TOWN OF FLATBUSH et al.

Court of Appeals of New York.

June 2, 1891.

Appeal from supreme court, general term, second department.

Treadwell Cleveland, for appellants.

Wm. J. Gaynor, for respondents.

EARL, J.

The plaintiffs are owners of certain land in the town of Flatbush through which Flatbush avenue runs, and they own the fee in the avenue subject to the public easements. The individual defendants are the street and sewer commissioners appointed and acting under the act, chapter 161 of the Laws of 1889. They were proceeding to construct a sewer through the avenue, and the plaintiffs commenced this action to restrain them on the ground that they had no right to construct the same through their land in the avenue without their consent and without condemning their land in the avenue under the provisions of the act, and also on the ground that the act is unconstitutional, in that the title thereof is insufficient under section 16 of article 3 of the constitution, which provides that ‘no private or local bill which may be passed by the legislature shall embrace more than one subject, and that shall be expressed in its title.’ The title of the act is ‘An act in relation to local improvementsin the town of Flatbush and the acquisition of the rights of a plank-road company in said town.’ Section 1 provides for the appointment of the five commissioners, who are required to be citizens, residents, and freeholders of the town. Section 2 provides for the purchase of the rights, franchises, and property within the town of Flatbush of the plank-road company, and authorizes them to change the lines of the avenue within the town, and to acquire lands for that purpose, and to fix a line on each side of the avenue as a court-yard line. It authorizes any persons owning the adjacent property to use the portion of the avenue in the court-yard in front of his property as follows: By inclosing the same with open and ornamental fences, and by building open porches or stoops, and having flowers and ornamental shrubbery and ornamental structures; and the commissioners are authorized to improve the avenue by grading, curbing, guttering, flagging, and paving or macadamizing the same, to fix the width of the carriage way and sidewalk, and to plant ornamental trees thereon. Section 4 is as follows: ‘Such commissioners shall devise and make a plan for building one or more trunk sewers to take and discharge the sewage matter in such town into the tidewater; and for the purpose of building sewers in such town to connect with the trunk sewer or sewers they may divide the territory in said town into as many districts as they may see fit, and devise a plan for the building of sewers in the streets of each district, so as to connect with such trunk sewer or sewers. They shall make and file maps showing such plans. All sewers herein provided for, other than trunk sewers, and other than sewers built for surface drainage only, are to be designated on any map or plan which may be filed as herein provided, and are, for the purposes of this act, designated as ‘lateral sewers.” And in section 5 it is provided as follows: ‘And for the purpose of building such trunk and lateral sewers they shall have the right to enter into or upon any street required for such sewers, and there to build and maintain the same. The right hereby given shall be deemed to include the right to acquire the necessary lands and rights to build the trunk and lateral sewers and branches in the said town of Flatbush, and also to build so much of said trunk sewer as may be necessary in the town of Flatlands. In case they require any rights in any streets or other lands not belonging to the public for the purpose of doing what is herein authorized as to said sewers, or for improving Flatbush avenue as hereinbefore provided, they may acquire such rights and property by purchase, or by the proceedings and in the manner provided as to the acquisition of lands for the purposes of railway.’ All the acts of the commissioners are to be performed in the town of Flatbush except the construction of the trunk sewer through the town of Flatlands to tide-water, and the plaintiffs claim that the construction of the sewer in the town of Flatlands is not expressed in the title. The section of the constitution invoked by the plaintiffs to destroy this act has given the courts much trouble. They have been able to formulate no general rule that will solve all the cases coming under this section. Whether the title of an act will stand the test of this constitutional requirement depends generally upon peculiar provisions of the act. Every provision contained in a private or local bill must be germane to and fairly connected with and tending to promote the subject expressed in the title. As said in Astor v. Railway Co., 113 N. Y. 93, 20 N. E. Rep. 594: ‘When the subject is...