
    The People of the State of New York ex rel. Tina B. Lasher, Respondent, v. The City of New York and Others, Appellants.
    Third Department,
    September 15, 1909.
    Constitutional law — privileges and. immunities of citizens—municipal corporations — act authorizing acquisition of lands for additional water supply—said act not in conflict with Federal Constitution — ' estoppel.
    ‘ * The privileges and immunities ” of citizens of the United States that cannot be abridged by a State (U. S. Const. 14th amendt. § 1) are the privileges and immunities arising under the Federal Constitution and not those arising under that of the State.
    Section 43 of chapter 734 of the Laws of 1905, as amended by chapter 314 of the Laws of 1906, which provides that the owner of lands not taken by virtue of said act for the water supply of the city of Mew "York, which are directly or indirectly decreased in value by reason of the acquisition of other lands shall have compensation for such decrease in value, is not in conflict with section 1 of the 14th amendment of the Federal Constitution. This, because the right of eminent domain forms no part of the body of political and civil rights which are protected and secured by that Constitution.
    Mo municipality or other corporation has an inherent right to take lands by eminent domain, that being an attribute of sovereignty belonging to the State, and the Federal government has no right to interfere with the conditions which the State may impose upon the exercise of that power.
    The only restrictions put upon the Legislature in the exercise of the power of eminent domain are that the use must be public and compensation be given. When the compensation is not made by the statute, it must be ascertained by a jury or by not less than three commissioners appointed by a court of record.
    
      As the Legislature in delegating its power of eminent domain is not bound to act uniformly or in accordance with any particular "rule, it may impose any condition on the grant of the power, whether precedent or subsequent, which it believes to be equitable. Hence, said statute giving to owners of lands which are depreciated in value by the construction of an additional water supply for the city of Hew York a right to compensation, does not violate the Constitution.
    In any event, the city of Hew York, having voluntarily accepted the right to exercise eminent domain under said statute, is bound by the conditions therein imposed and cannot attack its constitutionality.
    Appeal by the defendants, The City of New York and others, from an order of the Supreme Court, made at the Eensselaer Special Term and entered in the office of the clerk of the county of Ulster on the 17th day of February, 1909, granting the relator’s motion for a peremptory writ of mandamus requiring the defendants to forthwith provide for the determination of the damages to the relator’s business.
    The relator’s claim is based upon the provisions of section 42 of chapter 724 of the Laws of 1905, entitled : “An act to provide for an additional supply of pure and wholesome water for the city of New York; and for the acquisition of lands or interest therein, and for the construction of the necessary reservoirs, dams, aqueducts, filters and other appurtenances for that purpose; and for the appointment of a commission with the powers and duties necessary and proper to attain these objects,” as amended by chapter 314 of the Laws of 1906. So much of the section as is material is as follows: “ The owner of any real estate not taken by virtue of this act and chapter seven hundred and twenty-three of the laws of nineteen hundred and five or of any established business on the first day of June, nineteen hundred and five, and situate in the counties of Ulster, Albany or Greene, directly or indirectly decreased in value by reason of the acquiring of land by the city of New York for an additional water supply, or by reason of the execution of any plans for such additional water supply by the city of New York under the provisions of this act and chapter seven hundred and twenty-three of the laws of nineteen hundred and five, their heirs, assigns or personal representatives shall have a right to damages • for such decrease in value. The board of water supply of the city of New York may agree with such person as to the amount of such damages, and if such agreement cannot be made, such damages, if any, shall be determined in the manner herein provided for the ascertaining and determining the Value of real estate taken under the provisions of this act, and the commissioners shall not be limited in the reception of evidence to the rules regulating the proof of direct damages. And the amount of such damages so agreed upon as aforesaid, or so determined as aforesaid, shall be payable and collectible in the same manner as is herein provided in the case of awards made through the confirmation of a report of commissioners of appraisal.”
    On the 1st day of June, 1905, and for more than seven years prior thereto, the relator owned an established business on land in the town of Olive, Ulster county, the land being parcel E o. 64 in section Eo. 2, as laid out and numbered upon the final map or plan of the proposed site of the Ashokan reservoir. Commissioners of appraisal were appointed April 17, 1907, in proceedings begun by the corporation counsel of the city of Eew York, pursuant to the provisions of chapter 724 of the Laws of 1905, to acquire 8,000 acres of land for the construction of the reservoir. On the 5th day of August, 1907, the relator presented to the commissioners a verified claim for damages, and on that day appeared before the commissioners and offered evidence in support of her claim. The commissioners allowed her to testify fully as to the purposes for which the property was used, but refused to hear evidence concerning the damages to her business. The report of the commissioners was filed February 21, 1908, in which it was found and determined that Edwin B. Lasher, Alma O. Lasher and Ora O. Lasher, subject to the dotver right of the relator, were the owners of parcel Eo. 64, and that the amount -which ought to be paid to the owners and persons interested therein for the damages sustained, or which may be sustained, by them by reason of the acquisition of the fee for the purposes indicated in chapter 724, was the sum of $6,500, “ the commission having taken into consideration the purposes for which the property has been devoted.”
    In the petition on which the motion was founded it was also stated: “ That the said city, its Board of Water Supply, or its representatives entered upon and took possession of the lands upon which the business of your petitioner was conducted, * * * and on or about the fifteenth day of May, 1908, compelled your petitioner to leave her place of business and the section in which it was conducted, and to give up and abandon the same, and the said city, its Board of Water Supply or its representatives continue to maintain possession of such premises, as well as a considerable number of parcels it has taken possession of in such proceedings.”
    It also appeared that on the 15th day of Hay, 1908, the relator filed a claim for damages to her business with the board of water supply of the city of Hew York, and that she was unable to agree with the board as to the amount of damages to be paid.
    
      John J. Linson, Howard Chipp and Francis Key Pendleton, for the appellant.
    
      Harrison T. Slosson and Arthur A. Brown, for the respondent.
   Sewell, J.:

The appellant’s contention is that section 42 of chapter 724 of the Laws of 1905, as amended by chapter 314 of the Laws of 1906, conflicts with the 14th amendment of the United States Constitution. The privileges and immunities referred to in section 1 of the amendment are those only which arise under the Constitution of the United States, and not those which arise under that of the State. But, passing this point, and assuming that the section in question is included in the words “ any law,” there is then no ground for the claim that it is in conflict with the amendment and incapable of enforcement. The right of eminent domain forms no part of that body of political and civil rights which are protected and secured by the Federal Constitution. Ho municipality or other corporation has an inherent right to the power. It is an attribute of sovereignty. It belongs to the State, and with the conditions the State may impose for the gift or grant the United States, a separate sovereignty, has no right to interfere. There is no restraint upon the Legislature in delegating this power, save the provision in the Constitution of the State (Art. 1, §§ 6, 7) that the use must be public, compensation must be given, and when the compensation is not made by the State, it must be ascertained by a jury, or by not less than three commissioners appointed by a court of record. (Brooklyn Park Comrs. v. Armstrong, 45 N. Y. 234; Matter of Union E. R. R. Co. of Brooklyn, 112 id. 61; Mott v. Eno, 181 id. 346.)

It is clear, I think, that these provisions do not require the Legislature to act uniformly or according to any particular rule, in conferring this power upon individuals or corporations. The Legislature as the depository of this sovereign power is the sole judge of the expediency ancj necessity of the exercise of the power and tho extent to which the exercise of it shall be carried and the propriety and utility of the conditions to be imposed. It may not only determine the time and the occasion and as to what particular property it shall be exercised, who and how many shall receive the right, but it may impose any condition on the grant of power, whether precedent or subsequent, which it believes to be equitable, or it may deny the right absolutely.

It is to be observed also that after the power is conferred it is subject to be increased, restricted or repealed at the will of the Legislature, vested rights acquired thereunder, as under all statutes, only remaining unaffected.

I am, therefore, of the opinion that the 14th amendment has no application. But if it were not so, if the condition was a violation of the Federal or State Constitution, the city could not take advantage of the invalidity, for the city took the right of eminent domain with the condition among others that it should pay the damages to an established business. The act was not mandatory. It conferred a privilege which the defendants were at liberty to exercise or not as they saw fit. By accepting the power conferred by the statute and taking the land upon which the business was conducted under it, they agreed to the conditions and have no standing to raise the question of constitutionality.

This was the rule laid down in the case of People v. Murray (5 Hill, 468) where the defendants claimed that the act under which they had built a dam across the Genesee river was unconstitutional, for the reason that it authorized a proceeding not according to the common law, and deprived the parties of the right of trial by jury. The court said: The short answer is, that the defendants took the grant to build the dam with this condition attached to it, and they are not now at liberty to make the objection, though, under other circumstances, it might have been effectual.” To a similar effect are other cases. (Mayor v. Gorman, 26 App. Div. 191; Matter of Comeshy, 83 id. 137; Sherman v. McKeon, 38 N. Y. 266; Vose v. Cockcroft, 44 id. 415; People v. Fire Assn, of Philadelphia, 92 id. 311; Board, of Suprs. of Seneca v. Allen, 99 id. 532; Beetson v. Stoops, 186 id. 456.) I do not deem discussion necessary as to the other questions raised. The order appealed from should be affirmed, with costs.

Order unanimously affirmed, with costs.  