
    David Schulman et al., Appellants, v. The People of the State of New York, Respondent.
    Argued June 1, 1961;
    decided July 7, 1961.
    
      
      Donald W. Kramer for appellants.
    I. The Superintendent of Public Works has not in good faith taken property for a public purpose by appropriating an easement but, on the contrary, seeks to regulate plaintiffs’ use of their property under the guise of the exercise of the power of eminent domain. (People ex rel. Durham Realty Corp. v. La Fetra, 230 N.Y. 429; Matter of Bronx Chamber of Commerce v. Fullen, 174 Misc. 524; Matter of City of New York [Cross-Bronx Expressway], 195 Misc. 842; City of Rochester v. West, 164 N. Y. 510; Gunning System v. City of Buffalo, 75 App. Div. 31; Pontiac Co. v. Commissioners, 104 Ohio St. 447; Ellis v. Ohio Turnpike Comm., 162 Ohio St. 86; Triborough Bridge & Tunnel Auth. v. Crystal & Son, 2 A D 2d 37, 2 N Y 2d 961.) II. Even if the power sought to he exercised here is not that of the police power and may legitimately he classified as “eminent domain ”, it is clear that the attempted assertion of such power in the instant case by the Superintendent of Public Works is wholly without warrant of legislative authority for the simple reason that section 30 of the Highway Law confers no such power. This view is supported by the legislative history of section 30. III. This view is supported by every applicable rule of statutory construction. (Society of N. Y. Hosp. v. Johnson, 5 N Y 2d 102; Ontario Knitting Co. v. State of New York, 205 N. Y. 409; Matter of Water Comrs. of Amsterdam, 96 N. Y. 351; Schneider v. City of Rochester, 160 N. Y. 165; Matter of County of Erie v. Lancaster Development Co., 232 App. Div. 331; City of Oswego v. Montcalm Dock Co., 245 App. Div. 555; Burks v. Bosso, 180 N. Y. 341; Matter of Hurlbut, 180 Misc. 681; People v. Weinstein, 202 Misc. 171; People v. Bell, 306 N. Y. 110; Matter of Washington St. A. & P. R. R. Co., 115 N. Y. 442; Matter of City of New York [Willard Parker Hosp.], 217 N. Y. 1; Matter of Nyboe v. Allen, 7 A D 2d 822; People v. Durkee, 189 App. Div. 276; Adamson v. Schreiner, 176 App. Div. 95, 225 N. Y.
    
      713; In re West New York, 25 N. J. 377.) IV. It is supported by the rule that if section 30 is construed as conferring the right herein sought to be exercised, such grave questions of constitutionality would be presented that such construction ought to be avoided if the statute is susceptible of a more limited construction which will avoid such grave questions (which it clearly is). (Labor Bd. v. Jones & Laughlin, 301 U. S. 1; International Fuel & Iron Corp. v. Donner Steel Co., 242 N. Y. 224; Matthews v. Matthews, 240 N. Y. 28; Kauffman & Sons Saddlery Co. v. Miller, 298 N. Y. 38; J. & S. Operating Corp. v. Swire Appliance Co., 192 Misc. 713; People v. Brill, 255 App. Div. 452.) V. The purported seizure is further without legislative authority whatsoever in that many of the provisions of the so-called easement (actually provisions of the regulation) have no conceivable connection whatever with improvement of ‘i safety conditions upon the state highway system.” VI. Section 30 of the Highway Law, construed as the Appellate Division construed it, is unconstitutional in that it unlawfully delegates legislative power to the Superintendent of Public Works. (Panama Refining Co. v. Ryan, 293 U. S. 388; Schechter Corp. v. United States, 295 U. S. 495; State ex rel. Wisconsin Inspection Bur. v. Whitman, 196 Wis. 472; Matter of Small v. Moss, 279 N. Y. 288; Matter of Goelet v. Moss, 248 App. Div. 499, 273 N. Y. 503; Matter of Lyons v. Prince, 281 N. Y. 557; Packer Collegiate Inst. v. University of State of N. Y., 298 N. Y. 184.) VII. The Appellate Division ignored all of the above considerations and sustained the powers sought to be exercised, citing cases which are neither controlling nor in point. (Fifth Ave. Coach Co. v. City of New York, 194 N. Y. 19; Perlmutter v. Greene, 259 N. Y. 327; Matter of Bushwick Ave., 48 Barb. 9; Matter of City of New York [Clinton Ave.], 167 N. Y. 624.) VIII. In any event, the description of the so-called permanent restrictive easement is so vague and uncertain as not to constitute a valid taking. (Bell Tel. Co. v. Parker, 187 N. Y. 299; Matter of Water Comrs. of Amsterdam, 96 N. Y. 351; City of Plattsburg v. Kellogg, 254 App. Div. 455; Porter v. State of New York, 5 Misc 2d 28.) IX. Whether this alleged taking was for a public purpose to improve safety conditions on the highway is a judicial question which can be determined only upon trial of the case and the Appellate Division erred in granting defendant’s motion to dismiss. (Denihan Enterprises v. O’Dwyer, 302 N. Y. 451; Board of Black Riv. Regulating Dist. v. Ogsbury, 203 App. Div. 43, 235 N. Y. 600; Fetsch v. Village of Sands Point, 7 A D 2d 1003; Hart v. City of Glens Falls, 8 A D 2d 654; Cincinnati v. Vester, 281 U. S. 439; People ex rel. Horton v. Prendergast, 248 N. Y. 215, 278 U. S. 579; Matter of Deansville Cemetery Assn., 66 N. Y. 569; Queens Term. Co. v. Schmuck, 147 App. Div. 502; Bloodgood v. Mohawk & Hudson R. R. Co., 18 Wend. 9.) X. Whether there was any necessity for this alleged taking to improve safety conditions on the highway is, under the circumstances of this case, a judicial question which can be determined only upon trial of the case, and the Appellate Division erred in granting defendant’s motion to dismiss. (Long Is. R. R. Co. v. Sherwood, 205 N. Y. 1.)
    
      Louis J. Lefkowitz, Attorney-General (Julius L. Sackman and Paxton Blair of counsel), for respondent.
    I. The Superintendent’s power to impose the restriction against billboards by the acquisition of a permanent easement under the State’s power of eminent domain is authorized by section 30 of the Highway Law. (People ex rel. Horton v. Prendergast, 248 N. Y. 215; 278 U. S. 579; Rindge Co. v. Los Angeles, 262 U. S. 700; Matter of Townsend, 39 N. Y. 171; Rensselaer & Saratoga R. R. Co. v. Davis, 43 N. Y. 137; Matter of New York & H. R. R. Co. v. Kip, 46 N. Y. 546; Matter of Union Ferry Co., 98 N. Y. 139; Pocantico Water Works Co. v. Bird, 130 N. Y. 249; Matter of City of New York [Ely Ave.], 217 N. Y. 45; Matter of City of Rochester v. Holden, 224 N. Y. 386.) II. The power to acquire the permanent easement for the imposition of the restriction has been delegated by the Legislature to the Superintendent. (Matter of City of New York [Ely Ave.], 217 N. Y. 45; Societe Cotonniere du Tonkin v. United States, 171 F. Supp. 951; United States v. Certain Lands in Town of Highlands, 48 F. Supp. 306; Burnquist v. Cook, 220 Minn. 48; Greenwood County v. Watkins, 196 S. C. 51; Matter of New York & H. R. R. Co. v. Kip, 46 N. Y. 546; Society of N. Y. Hosp. v. Johnson, 5 N Y 2d 102; Ontario Knitting Co. v. State of New York, 205 N. Y. 409; Opinion of Justices, 330 Mass. 713; Matter of City of New York [Clinton Ave.], 57 App. Div. 166, 167 N. Y. 624; Opinion of Justices, 101 N. H. 527; Perlmutter v. Green, 259 N. Y. 327.) III. The statutory grant, as to the Thruway, of an alternative right to impose the restriction against billboards, under an exercise of the police power, does not imply a lack of power to effect the same result by an exercise of the power of eminent domain. (Decker v. People, 11 A D 2d 888.) IV. The map and description herein are clear, definite, certain and accurate. (United States v. 39.20 Acres of Land, 143 F. Supp. 623; Ellis v. Ohio Turnpike Comm., 162 Ohio St. 86; City Club of Auburn v. McGeer, 198 N. Y. 609; Las-Daub Realty Corp. v. Fain, 214 App. Div. 8). V. The determination by the Superintendent of Public Works of the necessity of the acquisition is legislative in character and is not subject to judicial review, nor is approval thereof required by the local board of supervisors. “Necessity” is a legislative question, not subject to judicial review. (Rindge Co. v. Los Angeles, 262 U. S. 700; Matter of City of New York [Ely Ave.], 217 N. Y. 45; Matter of City of Rochester v. Holden, 224 N. Y. 386; Matter of Public Serv. Comm., 217 N. Y. 61; Matter of Townsend, 39 N. Y. 171; Matter of Union Ferry Co., 98 N. Y. 139; Burda v. Palisades Interstate Park Comm., 204 Misc. 232.) VI. The approval of the local board of supervisors was not required. VII. The imposition by eminent domain of the restriction against billboards upon lands abutting upon a highway constitutes a public use and is not violative either of the State or of the Federal Constitution. VIII. It is the duty of the State to keep the highway safe for the traveling public and the imposition of the restriction against billboards is a legitimate performance of this duty. (Packer Corp. .v. Utah, 285 U. S. 105; Cohen v. Mayor of New York, 113 N. Y. 532; Fifth Ave. Coach Co. v. City of New York, 194 N. Y. 19, 221 U. S. 467; Churchill v. Rafferty, 32 Phil. Rep. 580, 248 U. S. 591; Kelbro, Inc., v. Myrick, 113 Vt. 64.) IX. Aesthetic factors justify the imposition of the restriction against billboards. (Attorney General v. Williams, 174 Mass. 476,178 Mass. 330,188 U. S. 491; Brooklyn Park Comrs. v. Armstrong, 45 N. Y. 234; Matter of Mayor of City of N. Y., 99 N. Y. 569; Shoemaker v. United States, 147 U. S. 282; Gunning System v. City of Buffalo, 75 App. Div. 31; People v. Green, 85 App. Div. 400; Preferred Tires v. Village of Hempstead, 173 Misc. 1017; Berman v. Parker, 348 U. S. 26.) X. The right to be let alone justifies the imposition of the restriction. (General Outdoor Adv. Co. v. Department of Public Works, 
      289 Mass. 149; Railway Express v. New York, 336 U. S. 106; State v. Hind, 143 Neb. 479; Kovacs v. Cooper, 336 U. S. 77; Pike Co. v. City of New York, 169 Misc. 109; Matter of Reynolds v. Valentine, 169 Misc. 631; People v. Harrow, 191 Misc. 216.) XI. Petitioners’ rights are de minimis in character.
   Van Voorhis, J.

This case is in a sense the converse of New York State Thruway Auth. v. Ashley Motor Court (10 N Y 2d 151) upholding the constitutionality of section 361-a of the Public Authorities Law, enacted in 1952, prohibiting the erection of any billboard or other advertising device located within 500 feet of the nearest edge of the Thruway pavement without a written permit from the Thruway Authority. The enactment of that section was held to be a lawful exercise of the police power of the State in the interest of public safety. The appeal in the case now under consideration concerns whether under section 30 of the Highway Law the State may condemn on payment of just compensation property rights in the form of negative easements in case of other State highways, the exercise of which it prohibits altogether without compensation under section 361-a of the Public Authorities Law in case of the Thruway. We are here dealing with a portion of Route 17 in Sullivan County. It is a limited-access highway, and, as the State asserts, it is similar in nature to the portion of the Thruway involved in the Ashley case. But section 361-a of the Public Authorities Law applies only to the Thruway, and not to Route 17. Section 675 of the Conservation Law prohibits the erection or maintenance of advertising signs within 500 feet of the border of any State park or parkway, but such is not Route 17. Section 569-b of the Public Authorities Law prohibits certain types of advertising signs within 500 feet of the Whitestone Bridge project or the Brooklyn Battery Tunnel project, or their approaches and connections, but this does not apply to Route 17. Having failed to get authority from the Legislature to control outdoor advertising along State highways generally through bills which were introduced but failed of passage in 1952, 1957, 1959 and again in I960, the Superintendent of Public Works of the State decided that the State could condemn a negative easement which, in effect, would eliminate on payment of compensation what the other statutes mentioned prohibit under the police power without payment of compensation. Of course under the decision in New York State Thruway Auth. v. Ashley Motor Court (supra) if any of the statutes just enumerated in the footnote had been passed, no compensation would need to be paid in order to prohibit the erection of advertising signs along any State highway including the portion of Boute 17 in Sullivan County that is involved upon this appeal.

In any event section 30 of the Highway Law appears not to have been designed or intended to authorize the condemnation of easements of this character. As is stated in the dissenting opinion at the Appellate Division by Mr. Justice Herlihy, it is clear that the amendment of section 30 by chapter 544 of the Laws of 1944 was adopted in order to transfer the exercise of the power of eminent domain for the construction of State highways from the various counties of the State to the Superintendent of Public Works. It had become unwieldly for the State to depend on co-ordinating the action of many counties in the construction of State thoroughfares, and the Legislature deemed it was desirable and necessary to concentrate the power of eminent domain in the State Superintendent of Public Works. This was the dominant purpose of the amendment. The Deputy Chief Engineer (Highways) stated in the annual report of the Superintendent of Public Works for the year 1944: “ This is the first time it has been possible for this Department to promulgate any definite highway programs because of the fact that heretofore the consummation of any program which might be instituted by the Department was entirely dependent upon the willingness and ability of the counties to acquire the necessary rights of way for the construction of the improvements. This insurmountable object to a planned program of work was eliminated in 1944 through the enactment of legislation which provides that the State shall acquire title to all rights of way needed in connection with State highway construction.” (N. Y. Legis. Doc., 1945, No. 60, pp. 40-41; see, also, pp. 4, 23-25.)

Statutes conferring the power of eminent domain are not extended by inference or implication (McKinney’s Cons. Laws of N. Y., Book 1, Statutes, § 293, pp. 335-336; Society of New York Hosp. v. Johnson, 5 N Y 2d 102,107; Ontario Knitting Co. v. State of New York, 205 N. Y. 409, 416).

The language of section 30 of the Highway Law, as thus amended in 1944, is as follows: ‘ ‘ The superintendent of public works, for and in behalf of the people of the state of New York may acquire by appropriation any and all property [including easements] necessary for the construction, reconstruction and improvement of state highways and bridges or culverts on the state highway system, including the appropriation of property for drains, ditches, spoil banks, gravel pits and stone quarries; also for the removal of obstructions, improvement of sight distances; also for appropriation of property for the reconstruction of existing highway-railroad separation structures and for the separation of highway-railroad grades on newly laid-out highways; and for other purposes to improve safety conditions on the state highway system.” (Italics supplied.)

The reference to these specific adjuncts such as drains, ditches, gravel pits and stone quarries, which the Superintendent is authorized to condemn in conjunction with highways, indicates the probable scope of the accompanying language on which the State relies, viz., “ and for other purposes to improve safety conditions on the state highway system.” In People v. Bell (306 N. Y. 110, 115), the following was quoted from McKinney’s Consolidated Lavra of New York (Book 1, Statutes [1942 ed.], § 239): “ ‘ Where words of specific or inevitable purport are followed by words of general import the application of the last phrase is generally confined to the subject matter disclosed in the phrases with which it is connected; for it is known by the company it keeps; and though it might be capable of a wider significance if found alone, it is limited in its effect by the words to which it is an adjunct. It may strengthen the general structure, but it cannot exceed the original outline. ’ ” This is known as the rule of ejusdem generis in statutory construction, and the reference to acquiring land to improve safety conditions on the State highway system was apparently intended to apply to analogous aspects to those which are specifically enumerated, rather than to confer a broad and general power to prohibit advertising signs capable of being seen by persons of normal visual acuity from the adjacent State highway—in the present instance 900 feet away, Such a power is nowhere mentioned in the statute. The elaborate regulation adopted by the Superintendent attempting to prohibit the erection of such signs contains provisions that could not on any theory be supported by the slender foundation afforded by the single phrase that has been quoted from section 30 of the Highway Law. Thus one of the provisions (subd. [j], par. [1]) prohibits signs advertising activities that are illegal under Federal, State or local laws or regulations in effect at the location. Whether the activity which is advertised by the display sign is legal or illegal has no relation to the aspect of the public safety which is adduced to support this regulation of the State Superintendent. The attention of the motoring public is dangerously diverted or otherwise without regard to whether the sign to which motorists’ attention is attracted advertises some activity that is permitted or forbidden by law. Neither is it relevant to the public safety whether signs are painted on trees or drawn upon rocks or other natural features as provided by subdivision (g), or whether the signs are clean and in good repair (subd. [j], par. [3]).

The practical construction of section 30 of the Highway Law by those charged with its enforcement since 1944 has been adverse to the holding below. Never before has the Superintendent of Highways asserted authority to condemn for the elimination of advertising signs, but, on the contrary, many attempts have been made to obtain legislation conferring this power which have been defeated in the Legislature.

However desirable it might be to have such a power as this vested in the State Superintendent of Highways, we are not at ■ liberty to prefer our own ideas of public policy ahead of the expression of the Legislature on this subject. The very existence of statutes regulating or prohibiting display advertising signs on the Thruway, on State parks or parkways, or in conjunction with the Triborough Bridge Authority projects, and the four abortive attempts to obtain such legislation in the case of State highways generally, indicates that the same power has not been conferred by section 30 of the Highway Law.

The judgment of the Appellate Division should be reversed, with costs, and that of the trial court reinstated.

Froessel, J. (concurring).

I concur in the opinion of Judge Van- Voorhis, and for the reason that the Superintendent is quite evidently attempting to use the condemnation statute as an authorization to exercise the State’s inherent police power to forbid signs, despite unsuccessful efforts to obtain appropriate legislation.

Judges Fuld and Foster concur with Judge Van Voorhis; Judge Froessel concurs in a separate opinion; Chief Judge Desmond and Judges Dye and Burke dissent and vote to affirm for the reasons stated in the opinion of Presiding Justice Bergan in the Appellate Division.

Judgment reversed, with costs, and the order of the County Court reinstated. 
      
       1952 Assembly Int. Nos. 1308, 1309, Pr. Nos. 1337, 1328; 1957 Assembly Int. No. 4179, ,Pr. No. 4968; 1969 Senate Int. & Pr. No. 725; 1959 Assembly Int. Nos. 1441, 3815, 3894, Pr. Nos. 1444, 3960, 4039; 1960 Senate Int. No. 1197, Pr. Nos. 1200, 1571.
     