
    Harriet S. Rumsey et al., Resp’ts, v. The New York & New England Railroad Co., App'lt.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed October 27, 1891.)
    
    1. Statutes — Presumption as to legislative vote — Laws 1842, chap. 306.
    While the presumption raised by the statement in the session laws that a bill was passed by a two-thirds vote of the members elected to each branch of the legislature may be overcome by the production of the original certificate of the presiding officer of either house showing the contrary, yet where that certificate merely states that it was passed and that two-thirds of the members elected to the assembly were present it would not overcome such presumption.
    2. Same.
    The court may refer hack, in case of such a clerical error, to the journal of the assembly for the purpose of ascertaining the fact as to whether there was a two-thirds vote.
    8. Constitutional law—Commissioners of the land office.
    The Constitution Art V, §§ 5, 6, gives the legislature in express terms the authority to prescribe the powers and duties of the commissioners of the land office as has been done in chap. 283, Laws 1850.
    Appeal from a judgment of the general term, second, department, affirming a judgment entered upon a decision made at the Dutchess special term.
    
      W. C. Anthony, for app’lt; H. H. Hustis, for resp’ts.
    
      
       Affirming 28 N. Y. State Rep., 984.
    
   Haight, J.

This action was brought to restrain the defendant from operating its railroad upon lands claimed to belong to the plaintiffs.

The defendant’s road at the village of Fishkill Landing was constructed in the year 1881, in the Hudson river, upon lands-under water in front of uplands owned by the plaintiffs. On the 3d day of March, 1885, the governor of the state, pursuant to a resolution of the commissioners of the land office, issued to the plaintiffs a patent of the lands under water in the Hudson river in front of their uplands, being about one thousand feet on the shore line and along the bank of the river, and about two thousand feet from high water mark to the channel bank of the river, excepting therefrom the rights of the New York Central & Hudson River Railroad Company.

It is contended that the plaintiffs obtained no valid title to the lands under water by reason of this patent, for the reason that it was issued under and pursuant to chapter 283 of the Laws of 1850, which act provides for the appropriation of public property to a private use, and because it is not certified to have passed the assembly by a two-thirds vote.

The act provides that “ The commissioners of the land office shall have power to grant in perpetuity or otherwise so much o£ the lands under the waters of navigable rivers or lakes as they 'shall deem necessary to promote the commerce of this state, or proper for the purpose of beneficial enjoyment of the same by the adjacent owner, but no such grant shall be made to any person other than the proprietor of the adjacent lands, and any such grant that shall be made to any other person shall be void.”

No question is made but that the certificate of the presiding officer of the senate is in due form. That of the assembly is as, follows:

“State op New York, )

“ In Assembly, April 10, 1850. j “ This bill was read the third time and passed; two-thirds of all the members elected to the assembly being present on its final passage.

“ By order of the Assembly,

“ F. C. Dininny, Speaker pro temí

The statute provides that the assent of two-thirds of the members elected to each branch of the legislature is requisite to every bill appropriating the public moneys or property for local or private purposes; and no bill shall be deemed to have passed by the assent of two-thirds of the members elected to each house unless so certified by the presiding officer of each house. 1 R. S., 7th ed., 432, §§ 2, 3.

The act in question is doubtless one which required the assent of two-thirds of the members elected to each branch of the legislature, and the certificate of the presiding officer of the assembly is defective in not showing whether it received the assent of a majority or two-thirds of the members elected.

The act, as published in the Session Laws, states that it was by a two-thirds vote. This statement is made in accordance with the provisions of chap. 306 of the Laws of 1842, which makes the same presumptive evidence that the bill was certified by the presiding officers as having been passed by the assent of two-thirds of the members elected to each house. This presumption, however, may doubtless be overcome by the production of the original certificate. The certificate produced, however, does not state that it was not passed by a two-thirds vote. It merely states that it was passed; that two-thirds of the members elected to the assembly were present. The certificate, therefore, independent of the statute referred to, would not overcome the presumption created by the statement appearing in the Session Laws. Under the statute the act shall not be deemed to have been passed by the assent of two-thirds unless the presiding officer so certifies, but this statute evidently contemplates that the certificate be made in due form, free from defects and clerical errors. Such a certificate would doubtless be conclusive; but to hold that a defective certificate, one that fails to state the fact either way, is, under the statute, conclusive, and overcomes the presumption created by the statement appearing in the Session Laws, is giving the statute an interpretation which we think was never intended. May "we, under these circumstances, look at the journal of the assembly for the purpose of determining the fact?

In the case of The People v. Purdy, 2 Hill, 31-34, Bronson, J., in delivering the opinion of the court said : “It has not been denied that the judicial tribunals of the state may in some way look behind the printed statute book for the purpose of ascertaining whether bills coming within the two-thirds clause of the constitution have received the requisite number of votes, and although I have felt a good deal of difficulty on that question I am inclined to the opinion that such an inquiry may be instituted. The question is no doubt one of great delicacy, but if the courts have the right to entertain it the duty is imperative and we are not at liberty to shrink from its performance.”

These views were approved by the court of errors on the review of the case. 4 Hill, 384.

And to the same effect is the case of Purdy v. The Commissioner of Highways of the Town of Marlborough, 54 N. Y., 276.

It is quite possible, however, that the courts would not be justified in going back of the original act on file in the secretary of state’s office, and the certificates thereto attached, for the purpose of impeaching them. The People v. Devlin, 33 N. Y., 269.

But in this case, as we have seen, the certificate of the presiding officer of the assembly is not in due form. It shows that the bill was passed, but not whether it was passed by a majority or a two-thirds vote. The omission to state that fact was evidently a clerical error, and under these circumstances we are inclined to the opinion that we may look back to the journal for the purpose of ascertaining the fact

Upon an inspection of the journal of the assembly for 1850, volume I, page 1268, it appears that the act in question was passed unanimously by the assembly; 101 votes in the affirmative and none against it, more than two-thirds'of all the members voting therefor.

It is claimed that the act of 1850 contravenes the constitution, because it tends to delegate the powers and functions of the legislature. As we have seen the act gives to the commissioners of the land office the power to grant lands under the waters of navigable rivers or lakes to promote the commerce of the state, or for the purpose of beneficial enjoyment by the adjacent owner.

The constitution provides that the lieutenant governor, speaker of the assembly, secretary of state, comptroller, treasurer, attorney general and state engineer and surveyor shall be the commissioners of the land office, and that their powers and duties “shall be such as now are or hereafter may be prescribed by law.” Constitution, Article Y, §§ 5-6.

This appears to give to the legislature in express terms the authority to prescribe the powers and duties of the commissioners of the land office, which has been done by the act in question.

It is also claimed that the state holds a qualified title to the lands under the waters of navigable rivers open to the sea, and that it has no right to appropriate them to a private use inconsistent with that of the people of the United States for the purpose of commerce and navigation. Suppose this to be so. The United States, however, is not here complaining of any encroachment upon the rights of inter-state commerce, and there is no-pretense that the grant in question operates to interfere with the navigation of the river. Under the findings of. the trial court the grant only extends to the channel bank of the river, and it could not, therefore, well interfere with the navigation thereof even though the land granted should be covered with buildings. We do not understand that the United States has ever made any claim to the low, flat lands covered with shallow water outside of the deep channel of navigable rivers, or that it has interfered with, the right of the state to control and dispose of the same. Willson v. The Black Bird Creek Marsh Company, 2 Peters, 245; Kerr v. The West Shore Railroad Company, 37 N. Y. State Rep., 913— 916.

Chapter 140 of the Laws of 1850, which gave, to railroad corporations the right to construct their roads across, along or upon any stream of water, water course, street, highway, plank road, turnpike or canal, excepts from the provisions of the act the right to obstruct any navigable stream or lake.

Chapter 565 of the Laws of 1890, removing such exception, was passed since the patent was issued by the state to the plaintiffs herein, and that act consequently could not divest the plaintiffs of any previously acquired rights to the lands in question.

This case has already been considered in this court upon a former appeal, 114 N. Y, 423; 23 N. Y. State Rep., 928, in which the questions not herein considered were disposed of. See also, same parties, 125 N. Y., 681; 34 N. Y. State Rep., 454.

The judgment should be affirmed, with costs.

All concur.  