
    In the Matter of the Application of The Common Council of the City of Syracuse for the Appointment of Commissioners to Ascertain and Report the Just Compensation to be Paid on the Proposed Opening of Oneida Street, Sixty-six Feet in Width, from its Present Southern Terminus to the North Line of Tallman Street, Opposite Beacon Street. The City of Syracuse and The Common Council of the City of Syracuse, Appellants; The Syracuse, Binghamton and New York Railroad Company, Respondent.
    
      Constitutional law■—street opening proceedings — a statute providing for notice to one class of persons but not to another held to be constitutional as to the former — de minimis non curat lex.
    Conceding that section 167 of the charter of the city of Syracuse (Laws of 1885, chap. 26, as amd. by Laws of 1888, chap. 449), providing for notice of the application for the appointment of commissioners to ascertain and report the just compensation to be paid to persons owning and having an interest in the property proposed to be taken in a street opening proceeding and shown to be benefited by the map adopted and filed, but which does not in express terms provide that notice shall be given to the owners of property taken but not benefited, is unconstitutional so far as it relates to the opening of streets upon lands taken but not benefited; nevertheless, that portion of the section which relates to the opening of the street through lands all of which are benefited is not thereby rendered unconstitutional, as the latter provision may he carried into effect without the aid of the former.
    Where it appears in such a proceeding that a portion of the land affected hy the proceeding is owned by a railroad company whose railroad consists of eighty-one miles of single track extending from Syracuse to Binghamton and is covered by two trust mortgages executed by the railroad aggregating §2,000,000, on which §7,750 remains due, the fact that notice of the proceedings was not served upon the substituted trustee under such mortgages, does not, upon the principle of de minimis non curat lex, invalidate the proceedings.
    Appeal by The City of Syracuse and The Common Council thereof from an order of the County Court of Onondaga county, entered in the office of the clerk of the county of Onondaga on the 20th day of April, 1898, dismissing the proceedings for the extension of Oneida street.
    •July 6, 1897, the common council of the city of Syracuse, pursuant to section 166 of the charter of that city, adopted by a two-thirds vote of the members of said council a resolution, which was duly approved by the mayor July 12, 1897, directing the chief engineer of the city to make a survey and map of a proposed extension of Oneida street from its southern terminus to the northern line of Tallman street. July 12, 1897, the city engineer reported that he had made a survey of the proposed extension and marked its boundaries on the ground by monuments, and presented a map of such proposed extension showing the land to be taken, from whom to be taken, and the lands which would be benefited by the extension of the street, which map was approved July 12, 1897, by the common council and was filed July 12, 1897, in the office of the clerk of the city of Syracuse and in the office of the clerk of the county of Onondaga. Thereupon, July 12,1897, said common council adopted resolutions declaring its intention to extend said street from its southern terminus to the northern line of Tallman street, and particularly described the land to be acquired for that purpose, and also the land which, in its judgment, would be benefited by the proposed improvement, which included the land of the Syracuse, Binghamton and New York Railroad Company ; and that it would apply to the County Cofirt of the county of Onondaga, at a term to be held August 27j 1897, for the appointment of three commissioners to ascertain and report the just compensation to be paid to the person or persons owning or having an interest in the property proposed to be taken, as provided by section 167 of the charter of said city, which resolutions were passed by calling the ayes and nays, sixteen of the nineteen members .of the common council voting in favor of the resolutions. These resolutions were duly approved by the mayor of said, city July 15, 1897.
    July 29, 1897, a copy of the resolutions of July 12, 1897, was duly mailed to the persons interested in the property proposed to be taken and which was affected by said extension, and among them, to the Syracuse, Binghamton and New York Railroad Company, and was published at least five' times in five successive numbers (Sundays and legal holidays excepted) in the two official newspapers of said city, being first so published July 29, 1897. August 27, 1897, the city, by its attorney, and the Syracuse, Binghamton and New York Railroad Company, by its attorney, appeared before the ■County Court, the attorney for the railroad appearing specially, and the proceedings were, by consent, adjourned until September 18, 1897, when the attorneys for the respective parties again appeared, .and the proceedings were adjourned until October .20, 1897, on which date the railroad company appeared specially and filed the following objections to the proceedings:
    
      “First. That at the time of the commencement of said proceedings there were two. mortgages on record in the Onondaga county clerk’s office, covering a portion of the property owned by the said Syracuse, Binghamton and New York Railroad Company, which portion was included in the property proposed to be taken by said city in these proceedings, which fact was shown by the affidavit of Peter B. Cole, presented to said court by said Jenney at the time, and that the owners of record of said mortgages had not been served with notice of the application in the above-entitled matter.
    “ Second. That there was no proper evidence that the map referred to in said notice had been filed in accordance with the provisions of ■section 166 of the revised charter of said city in the Onondaga county clerk’s office and in the city clerk’s office of the city of Syracuse.
    “Third. That there was no evidence that monuments had been placed as required by said section of the charter, indicating the lines •of said street.
    
      “Fourth. That the ‘ayes’ and ‘nays’ had not been called on the passage of the resolutions of the common council, as required by the ■city charter.
    
      
      “ Fifth. That the provisions of the city charter under which said proceedings were instituted are unconstitutional, because section 167 of the revised charter of the city of Syracuse does not provide for notice to the person whose land is to be taken, but permits the taking of such land by the city without due process of law.”
    Thereafter the proceedings were adjourned, from time to time,, until March 18, 1898, when they were dismissed, and from the order entered the city appeals.
    
      Levi S. Chapman, for the appellant.
    
      W. S. Jenney, for the respondent.
    
      
      Laws of 1885, chap. 26, as amd. by Laws of 1888, chap. 449, § 18.— [Rep.
    
   Follett, J.:

In respect to the first objection, it is stated, in an affidavit verified October 20, 1897, that the affiant has examined the records in the office of the clerk of the county of Onondaga, and that it appears from those records that October 18,1856, the Syracuse and Southern Railroad Company mortgaged its road, extending from Syracuse toBinghamton, to trustees, to secure the payment of $1,400,000, and that there appears to be due on that mortgage $2,750; also, that it appears by said records that May 29, 1867, the Syracuse, Binghamton and New York Railroad Company mortgaged its said road to-secure the payment of $600,000, upon which mortgage there appears to be due $5,000. It is further stated that Percy R. Pyne has been substituted as trustee under both mortgages in the place of the original trustees, and the contention is that these proceedings are invalid, because no notice of the application was mailed to, or served on, him.

Without considering whether Percy R. Pyne is an owner ” within the 167th section of the charter, I think this objection is disposed of by the maxim de minÍ7nis non curat lex.

Assuming that there is a liability of $7,750 existing under the two mortgages, the sum is so insignificant in proportion to the value of the railroad, consisting of eighty-one miles of single track, extending from Syracuse to Binghamton, that it may well be disregarded in this proceeding, as it is apparent that the security, if a lien exists, will not be impaired in the slightest degree by the extension of this street. Courts are not bound to a strictness in the construetian of the application of statutes which is harsh and pedantic. (The Reward, 2 Dod. 265, 269; White v. Beard, 2 Curt. Ecc. 480, 492.) Such a construction is allowed only for the protection of a substantial right threatened with invasion. The first objection is untenable.

The second objection is not sustained by the record, for it appears that a map of the proposed extension was made by the city engineer and duly filed July 12,1897, in the offices of the clerk of the city and of the clerk of the county of Onondaga.

The third objection is untenable, for it appears by the undisputed evidence contained in the record that, when the proposed extension was surveyed, monuments were placed on the ground showing the location of the extension.

In respect to the fourth objection, it appears that the resolution of ■July 6,1897, was adopted by a two-thirds vote of the common council, but that the ayes and nays were not called, and it also appears that the resolutions of July 12, 1897, were adopted by the affirmative votes of sixteen of the nineteen members of the common council upon a call of the ayes and nays. Section 29 of the charter provides : The ayes and nays shall be called and recorded on all motions and resolutions authorizing the expenditure or collection of money or the making of local improvements or repairs.”

The resolution of July 6,1897, neither authorized the expenditure ■or collection of money, nor the making of a local improvement, but ■simply authorized the engineer of the city to make a survey and map of the proposed extension of the street, and the question whether it should be extended was left until the coming in of his survey and map, and afterwards, July 12, 1897, the resolutions •directing the extension of the street were adopted upon a call of the ayes and nays.

Is section 167 of the charter unconstitutional in so far as it relates to these proceedings ? The section provides that notice of the application for the appointment of commissioners to ascertain and report the just compensation to be paid to persons owning or having an interest in the property proposed to be taken and shown to be benefited by the map adopted and .filed, but the section does not, in express terms, provide that notice shall be given to the ■owners of property taken but not benefited. If the provision of the section which relates to the opening of streets upon lands taken but not benefited be unconstitutional, it does not render the portion of the section unconstitutional which relates to a proceeding for the opening of a street through lands all of which are deemed by the common council to be benefited, and which are described as benefited on the map adopted and filed, and in the resolutions, for it is well settled that in case two provisions are contained in a statute, one of which is unconstitutional, such unconstitutional provision will not vitiate the other provision, provided it can be carried into effect without the aid of the unconstitutional provision. (People ex rel. Angerstein v. Kenney, 96 N. Y. 294; Matter of New York & Long Island Bridge Co., 148 id. 540.) The proceedings at bar affect only lands which are to be benefited by the proposed opening, as is shown by the map and resolutions. The section provides that the resolutions shall designate the time when and the place where application will be made for the appointment of commissioners, and that a copy of the resolutions containing a notice of the time and place when application will he made shall be published in the two official papers of the city, and served personally or by mail upon the persons benefited, at least ten days before the time designated for making the application, which provisions were strictly complied with in this proceeding. The publication was duly made, and a notice was duly and personally served July 29, 1897, on the railroad, that the application would be made August 27, 1897.

I am unable to see that any substantial legal defect in these proceedings is pointed out by the counsel for the railroad. Mere technical objections interposed by railroads to the opening of new streets and highways over their lines because it will involve some expense on their part, are not favored by the courts, for the reason that railroads hold their lands subject to the interest of the public; and such corporations are largely interested in the growth of cities and villages on their lines, for it increases their revenues, and cities and villages cannot grow without opening new streets and avenues.

The order should be reversed, with costs'.

All concurred.

Order reversed, with costs.  