
    Arthur E. Knapp et al., Appellants, v. Walter Fasbender, as Supervisor of the Town of Huntington et al., Respondents.
    Reargued October 3, 1955;
    decided April 27, 1956.
    
      
      Albert M. Levert for appellants.
    I. A town has only such powers as are delegated by the Legislature, and the powers which the Legislature vests in the town board must be exercised by the town board which may not delegate such powers, nor may a town do indirectly what it cannot do directly. (Kelly v. Merry, 262 N. Y. 151; Holroyd v. Town of Indian Lake, 
      180 N. Y. 318; People ex rel. New York, N. H. & H. R. R. Co. v. Willcox, 200 N. Y. 423.) II. The proposition did not separately state and number the several independent projects, agreements and expenditures of town funds referred to therein under the provision of section 82 of the Town Law, nor did the proposition or the town board in the resolution submitting it at the special election (or in any resolution) specify the amount of liability incurred or to be incurred for any of the said projects under the provision of section 223 of the Town Law. (Matter of Eggleston, 51 App. Div. 38; Village of North Tonawanda v. Western Transp. Co., 16 Abb. Prac. [N. S.] 297; Matter of McCabe v. Voorhis, 243 N. Y. 401; Economic P. & C. Co. v. City of Buffalo, 195 N. Y. 286; Village of Hempstead v. Seymour, 34 Misc. 92; Lyon v. City of Binghamton, 160 App. Div. 222; Village of Canandaigua v. Hayes, 90 App. Div. 336; Matter of Common Council of City of Lackawanna, 158 App. Div. 263; Mander v. Coleman, 109 App. Div. 454; Williams v. City of New York, 118 App. Div. 756, 192 N. Y. 541.) III. The special election held on May 15, 1951, and the proposition submitted at such election were ultra vires, and are null and void. (Mills v. Sweeney, 219 N. Y. 213; Hathaway v. City of Oneonta, 148 Misc. 695; Matter of McCabe v. Voorhis, 243 N. Y. 401; Reycroft v. City of Binghamton, 138 Misc. 257; Knapp v. Fasbender, 278 App. Div. 970, 303 N. Y. 803; City of Syracuse v. Snow, 123 Misc. 568; Horton v. Town of Thompson, 71 N. Y. 513; Cromwell v. MacLean, 123 N. Y. 474; Matter of Lamb, 51 Hun 633, 121 N. Y. 703.) IV. The Town of Huntington was and always has been, since the patent from Governor Nicolls in 1666, the owner of and vested with title to the land embraced within the limits of the aforesaid Nicolls Patent, the Dongan Patent of 1688 and the Fletcher Patent of 1694. The “ office of the Trustees of the Freeholders and Commonalty of the Town of Huntington ”, which was first created by the Dongan Patent of 1688 and abolished by chapter 492 of the Laws of 1872, was never vested with title to such lands. (Denton v. Jackson, 2 Johns. Ch. 320; North Hempstead v. Hempstead, 2 Wend. 109; Robins v. Ackerly, 91 N. Y. 98; People v. New York & Manhattan Beach Ry. Co., 22 Hun 95, 84 N. Y. 565; Town of Southampton v. Mecox Bay Oyster Co., 116 N. Y. 1; Lawrence v. Town of Hempstead, 155 N. Y. 297; People ex rel. Howell v. Jessup, 160 N. Y. 249; Town of Huntington v. Titus, 50 App. Div. 468, 169 N. Y. 579; Sammis v. Town of Huntington, 104 Misc. 7, 186 App. Div. 463; Lowndes v. Huntington, 153 U. S. 1.) V. The legal title and ownership of the town lands vested in the town, in its corporate capacity, is protected against being taken away by article XXXVI of the New York Constitution of 1777 and section 15 of article I of the present Constitution, as well as by clause 1 of section 10 of article I of the United States Constitution. Section 1 of chapter 816 of the Laws of 1952 being unconstitutional and void, entails the invalidity of the act in its entirety. (Knapp v. Fasbender, 278 App. Div. 970; People v. Livingston, 8 Barb. 253; People v. Van Rensselaer, 9 N. Y. 291; Matter of Jennings v. Watt, 264 N. Y. 306; Town of Brookhaven v. Smith, 188 N. Y. 74; People ex rel. Howell v. Jessup, 160 N. Y. 249; People ex rel. Squires v. Hand, 158 App. Div. 510; Sammis v. Town of Huntington, 104 Misc. 7, 186 App. Div. 463; City of New York v. Village of Lawrence, 250 N. Y. 429; People v. Purdy, 2 Hill 31.) VI. By colonial statute before the Revolution and by the statutes of the State of New York after the Revolution through to the Town Law of 1932, the power of control and disposition of the town lands of the Town of Huntington was exclusively vested in the freeholders and inhabitants of said town in town meetings assembled, and any authority exercised by the office of the trustees of the freeholders and commonalty of the town, or their successors the board of trustees, was derived solely by delegation and direction of such freeholders by their vote in town meetings. (Augustine v. Town of Brant, 249 N. Y. 198, 250 N. Y. 537; Rivet v. Burdick, 255 App. Div. 131; Town of Huntington v. Titus, 50 App. Div. 468, 169 N. Y. 579; Denton v. Jackson, 2 Johns. Ch. 320; North Hempstead v. Hempstead, 2 Wend. 109; Rogers v. Jones, 1 Wend. 237; People v. New York & Manhattan Beach Ry. Co., 84 N. Y. 565; Furey v. Town of Gravesend, 38 Hun 319, 104 N. Y. 405; Tilyou v. Town of Gravesend, 104 N. Y. 356; People v. Warner, 116 App. Div. 863.) VII. By the Town Law of 1932, the power of management, custody and control of all town finances, town lands, buildings and property of every description were centralized in the town board. (Farnsworth v. Boro Oil & Gas Co., 216 N. Y. 40; Matter of Hurley v. Cheshire, 234 App. Div. 464, Adee v. Arnow, 91 Hun 329; People ex rel. New York, N. H. & H. R. R. Co. v. Willcox, 200 N. Y. 423; Barker v. Town of Floyd, 61 App. Div. 92; Pratt v. Munson, 84 N. Y. 582; Botany Worsted 
      
      Mills v. United States, 278 U. S. 282.) VIII. Chapter 816 of the Laws of 1952 is unconstitutional and void in that it violates sections 15 and 16 of article III of the Constitution. (Greene v. Dunscomb, 281 N. Y. 261; Coxe v. State of New York, 144 N. Y. 396; Williams v. Boynton, 147 N. Y. 426; Rogers v. Stephens, 86 N. Y. 623; Kerrigan v. Force, 68 N. Y. 381; People ex rel. Lee v. Supervisors of Chautauqua, 43 N. Y. 10; Huber v. People, 49 N. Y. 132; Gaskin v. Meek, 42 N. Y. 186; People v. O'Brien, 38 N. Y. 193; Allen v. Stevens, 161 N. Y. 122; Parfitt v. Furquson, 159 N. Y. 111; Wenk v. City of New York, 82 App. Div. 584.)
    
      Louis Cohen and George M. Blaesi for respondents.
    I. The special election of May 15, 1951, was not null and void. II. An election can be held with validating effect. (Matter of Tartaglia v. McLaughlin, 297 N. Y. 419; Brown v. Mayor of City of N. Y. 63 N. Y. 239; Bradford v. County of Suffolk, 283 N. Y. 503; Seif v. City of Long Beach, 286 N. Y. 382; Albany City Nat. Bank v. City of Albany, 92 N. Y. 363; Mander v. Coleman, 109 App. Div. 454.) III. The proposition was adopted by the vote of owners of property in the town. IV. There was compliance with the requirement that each proposition be separately stated and numbered. (Burke v. Kern, 287 N. Y. 203; Richfield Oil Corp. v. City of Syracuse, 287 N. Y. 234; Matter of Mayer, 50 N. Y. 504.) V. The proposition was not indefinite and did not intend to mislead the voters. VI. Many of appellants’ arguments in this court are based on matters which were neither pleaded nor tried. (Everett v. Village of Potsdam, 112 App. Div. 727.) VII. In enacting chapter 816 of the Laws of 1952, it was the intent of the Legislature to validate and ratify the acts of the board of trustees challenged herein and such enactment was in consonance with the law. VIII. Legal title to all lands embraced within the colonial patents was vested by said patents in the trustees of the freeholders and commonalty of the Town of Huntington and is now vested in the board of trustees of the Town of Huntington as their successors. (Robins v. Ackerly, 91 N. Y. 98; Trustees of Southampton v. Jessup, 162 N. Y. 122; People v. Lowndes, 130 N. Y. 455; Lowndes v. Huntington, 153 U. S. 1; People ex rel. Howell v. Jessup, 160 N. Y. 249; People v. Miller, 235 App. Div. 226; Sammis v. Town of Huntington, 104 Misc. 7, 186 App. Div. 463; Denton v. Jackson, 2 Johns. Ch. 320; Town of Southampton v. Mecox Bay 
      
      Oyster Co., 116 N. Y. 1; Trustees of Brookhaven v. Strong, 60 N. Y. 56.) IX. Chapter 816 of the Laws of 1952 embraces but one subject and that subject is fully and fairly stated in its title. (Burke v. Kern, 287 N. Y. 203; Brown v. Mayor of City of N. Y., 63 N. Y. 239; Matter of Kendall, 85 N. Y. 302; Bogart v. County of Westchester, 185 Misc. 561, 270 App. Div. 274; People ex rel. Olin v. Hennessy, 206 N. Y. 33; People ex rel. Corscadden v. Howe, 177 N. Y. 499; Economic P. & C. Co. v. City of Buffalo, 195 N. Y. 286.) X. The references in chapter 816 of the Laws of 1952 to the Town Law, to article 79 of the Civil Practice Act and to section 1307 of the latter, are not such incorporation by reference as is prohibited by section 16 of article III of the Constitution. (People ex rel. Everson v. Lorillard, 135 N. Y. 285.)
   Burke, J.

This is an appeal from a judgment declaring valid a proposition adopted on May 15, 1951, at a special town meeting of Huntington, Suffolk County, Long Island, reading as follows:

PROPOSITION" HUMBER OHE

Shall the action of the Supervisor, Justices of the Peace and Town Clerk of the Town of Huntington in acquiring for the town in the name of the Board of Trustees the 22 acre beach and park at Centerport, the various lots comprising the recreation fields in G-reenlawn, East Northport and Huntington Station, the several parking lots in Huntington Village, Huntington Station and East Northport and the Gerard Street Extension; and in improving and maintaining the same; and in contracting with the U. S. Dredging Corp. for the dredging of Huntington’s harbors and bays and using the revenues therefrom for the foregoing purposes, be approved? ”

The proposition dealt with three projects: the acquisition of the beach property at Centerport, the making of lease-purchase agreements for the acquirement of parking areas and recreation fields in various parts of the town, and contracts made with the U. S. Dredging Corp. for the sale and disposal of gravel and sand and for the dredging of Huntington Bay and Harbor. In the Town of Huntington, there are two boards, the town board and the board of trustees. The town clerk is not a member of the town board. The supervisor, justices of the peace and the town clerk constitute the board of trustees of the Town of Huntingdon. The two boards are separate and distinct, maintaining separate books and records. All of these transactions were entered into in the name of the board of trustees of the Town of Huntington.

The complaint alleges that all the acts, transactions and contracts mentioned in Proposition No. 1 were the acts of the board of trustees of the Town of Huntington made and performed, under the claims, that the board of trustees is separate and apart from the town board, and that the board of trustees is not controlled by the laws, rules and regulations affecting the town board and that such transactions do not require prior authorization. The plaintiffs sought an adjudication and judgment declaring invalid and void (1) a resolution adopted by the town board at a special meeting directing the holding of a special election to vote on Proposition No. 1, and (2) the proposition as approved at the special election.

The preliminary question before us then is to decide whether the board of trustees truly possessed the power to enter into such contracts free from the restraints of the provisions of the Town Law, which requires a resolution of the town board and the approval of the qualified electors to engage in certain town improvements. If the answer is in the affirmative, the issue of the validity of Proposition No. 1 need not be considered. For if these contracts were proprietary in nature they did not require prior authorization or subsequent approval of the electors as will be discussed hereafter. In that event the adoption of the resolution by the town board was needless. But if any of the circumstances surrounding the making or performing of the contracts as distinguished from the right to enter into the contracts, were illegal or corrupt, such transgressions may be redressed in a different action or proceeding.

On the application for leave to appeal and on the appeal, references were made to chapter 816 of the Laws of 1952 entitled An act to ratify and confirm the title of the trustees of the town of Huntington, Suffolk county, in and to certain lands therein and to ratify and confirm the acts of its board of trustees, and defining the powers and duties of such board ”. We decided that we might be obliged to apply chapter 816 of the Laws of 1952 in whatever manner it related to the present controversy. We, therefore, ordered a reargument to ascertain whether chapter 816 of the Laws of 1952 renders the town board resolution and Proposition No. 1 academic (308 N. Y. 1021). There is no real controversy over the proposition if the statute makes prior authorization or ratification by a town election unnecessary.

Chapter 816 of the Laws of 1952 was enacted after this action was tried and the proposition approved by the voters. The memorandum submitted in support of the bill, letters from the Comptroller and Attorney-General, and communications in opposition and in support of the proposed legislation, all contained in the files of the Legislature, made it clear to the Legislature and the Governor that the purpose of the legislation was to define, clarify, confirm and ratify the powers of this board of trustees for the reason that the rights of the trustees to exercise certain powers were being challenged in current controversies, including this very action. With the intent and purpose of the bill completely revealed, the Legislature passed it and the Governor approved it. Therefore, chapter 816 of the Laws of 1952 is applicable to the present issue.

. Moreover, we are required to decide on the basis of the law as it exists at the time of our decision (Matter of Tartaglia v. McLaughlin, 297 N. Y. 419; People ex rel. Clark v. Gilchrist, 243 N. Y. 173, 180), hence chapter 816 of the Laws of 1952 is before us. This statute reads as follows:

‘ Aw act to ratify' and confirm the title of the trustees of the town of Huntington, Suffolk county, in and to certain lands therein and to ratify and confirm the acts of its board of trustees, and defining the powers and duties of such board
# * *
“ Section 1. Legal title is hereby ratified and confirmed in the Board of Trustees of the Town of Huntington as successor to the Trustees of the Freeholders and Commonalty of the Town of Huntington under Chapter 492 of the laws of 1872 as amended by Chapter 101 of the Laws of 1929, to all lands described in the Governor Nicholls Patent recorded in Book No. 1 of Patents at Page 73, in the Governor Pongan Patent recorded in Book No. 6 of Patents at Page 338 and in the Governor Fletcher Patent recorded in Book No. 6 of Patents at Page 493, all in the office of the Secretary of State.

“ § 2. The powers to acquire, hold, manage, lease, control, convey, grant and dispose of property both real and personal for the benefit of the residents and taxpayers of the Town of Huntington heretofore exercised by said Board of Trustees of the town of Huntington and/or its predecessors, are hereby ratified and confirmed in said Board of Trustees and said Board of Trustees is hereby authorized and empowered to continue to hold, manage, lease, convey, grant, invest and reinvest such property and funds as Trustee for the residents and taxpayers of the Town of Huntington, and in furtherance of its said trust to acquire in its own name by gift, purchase or lease and to maintain and improve property of any nature either real or personal, for the benefit of the residents and taxpayers of the Town of Huntington.

“ § 3. All acts heretofore taken by said Board of Trustees in the exercise of the aforesaid powers are hereby legalized and confirmed and made effectual and valid as the official acts of said Board of Trustees.

“§ 4. Except as therein otherwise specifically provided, the provisions of the town law, shall not apply to the acts of said Board of Trustees, and such acts shall be subject to review by the Supreme Court under the provisions of Article 79 of the Civil Practice Act of the State of New York. Such trust is hereby declared to be an express trust within the meaning of Section 1307 of the Civil Practice Act.

§ 5. If any clause, sentence, paragraph or part of this enactment or the application thereof to any person or circumstances, shall for any reason be adjudged by a court of competent jurisdiction to be invalid, such judgment shall not affect, impair or invalidate the remainder, and the application thereof to other persons or circumstances, but shall be confined in its operation to the clause, sentence, paragraph or part thereof directly involved in the controversy in which such judgment shall have been rendered, and to the person or circumstances involved. It is hereby declared to be the legislative intent that this enactment would have been adopted had such invalid provisions not been included therein.

§ 6. This act shall take effect immediately.”

The plaintiffs contend first, that the board of trustees has arrogated to itself and usurped the powers of the town board, second, that the acts, whether considered acts of the trustees or town board, must be approved at town elections, and third, chapter 816 of the Laws of 1952 is unconstitutional and void.

In order to determine the validity of these challenges, it is appropriate to turn to an examination of the powers and duties of the town trustees as historically conceived, altered and exercised. In this manner we will be able to determine whether they exceeded their normal limitations in entering into the aforementioned agreements. Also, we will be aided in determining the scope of the 1952 enactment and whether it contains any innovations which are repugnant constitutionally or otherwise.

By three separate grants of Colonial Governors of New York, certain uplands and lands under Huntington Harbor and Huntington Bay were given to the trustees of the freeholders and commonalty of the Town of Huntington, who were thereby created a corporate body. They were given the express powers necessary to manage and preserve the trust estate. These grants were confirmed in the first Constitution of the new State of New York and in all subsequent Constitutions. Such grants were recognized by this court in Trustees of Brookhaven v. Strong (60 N. Y. 56).

The New York Constitution of 1777 confirmed and ratified the proprietary and governmental powers in the trustees until otherwise directed by the legislature ’ ’.

The Constitution thus entrusted the Legislatures with the authority of preserving boards of trustees or abolishing them, of creating towns and town boards, with specified powers, or abolishing them, of enlarging or curtailing powers granted to towns and town boards or to boards of trustees.

Insofar as composition is concerned, the trustees continued to function as originally constituted until 1872. In that year the Legislature provided that the supervisor and assessors of the town, together with the town clerk, should constitute, ex officio, the board of trustees of the Town of Huntington, replacing the trustees of the freeholders and commonalty of the town. This new body was vested “ with all the rights, privileges, powers, duties and jurisdiction heretofore enjoyed or exercised by such trustees, over the real and personal property of the town of Huntington.” (L. 1872, ch. 492.)

The new body continued to function in the same manner as the old one until 1929, when a further change was made necessary by the abolition of the office of town assessor. By chapter 101 of the Laws of 1929 the supervisor and the justices of the peace of the town, constituting the new town board, were made, together with the town clerk, ex officio, the board of trustees of the Town of Huntington, with all the powers' of their predecessors. The town board and the board of trustees have continued to date to operate as separate and independent bodies. No legislative act has merged them'or reduced the original proprietary powers of the trustees.

On the contrary, by the acts referred to and other acts, the Legislature has recognized their independent existence. For example, in 1888, it ceded to the trustees of the Town of Huntington, all right, title and interest which the People of the State of New York had, if any, in the lands outside of and beyond low water mark under the waters of Huntington bay, in the town of Huntington * * * for the purpose of oyster cultivation ” by chapter 279 of the Laws of that year.

A careful examination of the decisions, statutes and public records compel us to conclude that chapter 816 of the Laws of 1952 merely ratifies, confirms and defines pre-existing powers of this board of trustees, powers which the Legislature has given to boards of trustees in general. The Legislature in confirming the powers in this board of trustees was reciting powers which have been granted to and exercised by the board of trustees of Southampton and other towns under similar grants and legislative enactments. Although the wisdom of continuing the coexistence of a dual political system is open to question, this court has not substituted and cannot substitute its judgment in the place of the judgment of the Legislature.

Indeed this court has frequently recognized trustees created by colonial patents. (Trustees of Brookhaven v. Strong, 60 N. Y. 56, supra; Trustees of Southampton v. Jessup, 162 N. Y. 122; Tiffany v. Town of Oyster Bay, 209 N. Y. 1; Town of Islip v. Estates of Havemeyer Point, 224 N. Y. 449.)

The words and phrases denoting the powers of the trustees used in the legislative acts, grants and the decisions are synonymous with, if not identical to, the words and phrases used in chapter 816 of the Laws of 1952. The physical characteristics of the lands and their use and occupation by the public and the trustees for the public, as described in the opinions of the courts, show that they were utilized for purposes which resemble and even correspond exactly to the purposes for which the projects described in Proposition No. 1 were designed. In Beers v. Hotchkiss (256 N. Y. 41, 58-59), the court said:

‘ ‘ What was enacted as to the town allotments was merely an incidental feature of a comprehensive statute embracing other subjects. There was surely no purpose by the repeal to overturn or unsettle titles of immemorial acceptance. Confirmation of anything so fundamental must have been felt to be a mere formality. The final arbiter was usage. Doctrine had not established itself sufficiently to be superior to practice. To learn what the law was we must try to ascertain what the colonists of those days believed it to be, and to learn what they believed it to be we must try to discover what they did.

“ The respondents, rejecting the allotments as insufficient to divest the title of the township, take their stand upon the position that in 1818 lots numbers 31 to 35 of the Quogue Purchase, Last Division, were still undivided commons, the title vested in the township or in the trustees that represent it. The reason why the year 1818 is important is because in that year the Legislature passed a statute whereby whatever title to the undivided lands had belonged theretofore to the Trustees for the Freeholders and Commonalty of the Town of Southampton was transferred to a new body corporate, £ the Trustees of the Proprietors of the undivided lands of the town of Southampton ’ (Laws of 1818, ch. 155). The provisions of this statute, since they are the source of respondents’ claim of title, must be stated with precision. By section 1, the proprietors of the undivided lands and meadows, held by them as tenants in common,’ were authorized to meet at a stated time, and annually thereafter, to elect for the term of one year not less than six nor more than twelve persons, being proprietors, trustees to manage all the undivided lands, meadows and mill streams in said town of Southampton. ’ By section 2, the trustees were declared to have the same power to superintend and manage the undivided lands, meadows and mill streams ’ as had formerly belonged to the trustees of the freeholders and commonalty of the town, and also to sell, lease and partition them. By section 3, the clerk of the trustees was charged with a duty £ to keep a record of the names of each proprietor, and the amount of right to him or her belonging, and to make transfers of the same;’ and no person was to be £ entitled to a vote at any meeting of said proprietors, without their names are entered on said record. ’

££ The respondents’ claim of title to the premises in suit is derived through mesne conveyances from a sale by the trustees of lands described as undivided. On November 7,1882, the Trustees of the Undivided Lands of the Town of Southampton delivered to one Maxwell for a consideration of $500 a quitclaim deed of all the right, title and interest of the grantors in the undivided lands under water in Shinnecock bay within the limits of the Quogue Purchase; the lands under water in the Great South bay and connected creeks within the same limits; the lands under water in Canoe Place pond; and the beach and shore of Peconic bay within stated bounds. If the quitclaim had stopped there, it would have given no color of right to a claim of title to the land in suit. In closing, however, it supplements the detailed description by a more general one as follows: ‘ together with all other undivided lands which may exist within the limits of the said Quogue Purchase (so-called).’ This deed being intended to convey all the right, title and interest which the proprietors of the undivided lands have in said Quogue Purchase (so-called). The respondents’ claim of title to the upland is based upon this clause.” (Emphasis added.)

Again in People ex rel. Howell v. Jessup (160 N. Y. 249), the court said at page 259: “In construing a charter containing similar provisions, Chief Justice Taney said: ‘ It is not a deed conveying private property, to be interpreted by the rules applicable to cases of that description. It was an instrument upon which was to be founded the institutions of a great political community; and in that light it should be regarded and construed. ’ Were there no authorities in existence commanding such a decision, we could, guided by this rule alone, quite readily reach the conclusion that the letters patent were broad enough in terms to grant to the trustees of the freeholders and commonalty of the town of Southampton not only the lands under the waters, but the sovereignty over the waters ” (italics supplied); and at page 265: “ The result of our investigation is that we conclude that the crown had authority to grant not only the land and the lands under the water, but the waters as well at this point, and that the title and the sovereignty over such water and the lands thereunder was by the Andros and Dongan charters vested in and conferred upon the trustees for the freeholders and commonalty of the town of Southampton ” (italics supplied); at page 267: “ The conclusion drawn by us from these enactments and provisions of the organic law is that the title and all rights of control granted to the trustees for the freeholders and commonalty of the town of Southampton was confirmed by the enactment of the colonial legislature, and continued by the provisions of the first and subsequent Constitutions

The littoral and the strand of the Southampton and Brook-haven proprietary lands have been used for centuries for recreation, including bathing, boating and fishing. The waters and docks have been utilized to anchor and berth boats. That such use was proprietary is beyond cavil. In 1818 — as stated in Beers v. Hotchkiss (supra, p. 58) —the Legislature created a body called the “ Trustees of the Proprietors of the common and undivided land of the town of Southampton ’ ’ and conferred upon them all rights of management of the 11 undivided lands, meadows and mill streams ’ ’ of the town and the power to ‘ ‘ sell, lease and partition ’ ’ the same; however, there was reserved to the trustees of the freeholders and commonalty of the town the right of management of the waters within the town and of “ the fisheries, seaweed and productions of the waters ’ ’, for the benefit of the town, and to its inhabitants was reserved ‘ ‘ the privilege of taking seaweed from the shores of any of the common lands of the town ” (L. 1818, ch. 155). The trustees of the proprietors conveyed a portion of undivided beach property to an individual who conveyed to one Frederick H. Betts. In both of these deeds of conveyance there was reserved the right to the public of passing and repassing along the ocean shore, of bathing in the ocean and of landing boats at the head of the pond, etc. On this property were constructed cottages for summer residents and a church. Shortly before the turn of the century, the trustees of the freeholders instituted a suit against Betts in ejectment. In order to establish their title to the beach property, they insisted before this court ‘ ‘ that the beach was a part of the common lands of the town, held by its trustees for a public use, and that it necessarily was so from its peculiar character and from the uses to which it was put.” They also argued “ that the act, in its transfer of title from the one set of trustees to the new set, then created, concerned only lands which always had been those of the proprietors and which remained undivided; that those undivided lands did not include lands inherently of the character of such as usually are held for public use and that there was evidence proving, or tending to prove, that the beach, or seashore, had always been reserved for the public use and, therefore, could not have been comprehended within the lands affected by the act of 1818 In effect their position was that this beach property and the uses to which it was put were necessarily governmental in nature and title to it could not have been vested in a nongovernmental body with only proprietary powers, as was the trustees of the proprietors of the undivided lands. But the court rejected this argument and held that the 1818 act intended no such exception and that the shore lands or beaches were just as much common and undivided lands within the terms of the trust, as were any other lands within the town boundaries (Trustees of Southampton v. Betts, 163 N. Y. 454, 458, 459). (Cf. Caldwell v. Village of Island Park, 304 N. Y. 268, wherein this court declared that a beach owned by a municipality was owned in a proprietary capacity.) Consequently, the decision in Knapp v. Fasbender (278 App. Div. 970, appeal withdrawn 303 N. Y. 803) was in error to the extent that it held that the board of trustees was without the power to acquire lands for a beach or a recreation project.

We can perceive no differences in purposes in the modern recreational aspects of projects described in Proposition No. 1: the beach; the parks; and the recreational fields from the uses proprietary lands have been committed to in a county bordering on the ocean, the sound and many bays. Similarly the parking lots designed to harbor modern means of transportation are akin to the anchorage and berths heretofore provided by trustees for a major means of transportation in a time and in a county whose inhabitants, as the cases show, were engaged in using and enjoying the advantages of the ocean, sound, bays and harbors which embrace the Suffolk lands. Furthermore, to the extent that these parking lots facilitate the transportation of the inhabitants in and about the community, they are analogous to transit systems. The operation of such systems by municipalities had been repeatedly held by this court to be a proprietary and not a governmental function (see City of New York v. New York Tel. Co., 278 N. Y. 9, and cases cited therein). In Edinger v. City of Buffalo (213 N. Y. 674) it was held that the establishment of a playground is not a governmental function, and in Augustine v. Town of Brant (249 N. Y. 198) we found that the establishment of a town park was the exercise of a proprietary power (see Matter of City of New York [Gillen Place], 195 Misc. 685, affd. 278 App. Div. 779, affd. 304 N. Y. 215: garage and depot).

It is evident that actions of boards of trustees in acquiring, holding, managing, leasing, controlling, conveying, granting and disposing of real property and personal property have been authorized frequently by the Legislature and approved by the courts. Such acts have been alluded to in the decisions heretofore cited. Further illustrations of such activities are found in Sanger v. Merritt (120 N. Y. 109, 112-113) where this court said: “ The litigants agree that in the seventeenth century the town of Huntington through the trustees for the freeholders and commonalty thereof, succeeded to the rights of the British Crown and of the Indians, and became the owner of the lands in dispute and of the adjoining lands. * * * the undivided lands were held, and managed by the trustees for the benefit of all. Frequently additional lands were acquired by the town in the name of the trustees, as was done by the town of Huntington ” (emphasis added), and in People ex rel. Swan v. Doxsee (136 App. Div. 400, 401, affd. on opinion below 198 N. Y. 605), where trustees under chapter 455 of the Laws of 1903, took title to a dock at Islip, Long Island: “ The act in question provided that the trustees of the town lands ‘ shall have the charge and supervision of all such docks, bulkheads and landing places, and the power to prescribe rules and regulations for the use thereof by the public.’ ” (Italics supplied.)

And in Town of Huntington v. Titus (50 App. Div. 468, 470, 471, affd. without opinion 169 N. Y. 579) where the agreement between one Townsend and the trustees contemplated a reversion of the real and personal property to the trustees for a failure to perform certain conditions subsequent, the court did not question the power of the trustees to enforce the agreement, even though the natural consequence would have been to place the trustees in the business of milling.

The legislative enactments relating to these trustees are consistent in recognizing the existence of the trustees and their powers to acquire, manage and dispose of the lands. Consistent also were all actions taken by the trustees and their predecessors in pursuance of these powers. They have made numerous conveyances of these lands to individuals pursuant to resolutions of the board of trustees and have also made leases of docks and of oyster beds under waters of the harbors and bays of Huntington. The Suffolk County records of conveyances from 1694 to the present time, as well as the cases cited, show that the conveyances were the acts of the trustees of the freeholders and commonalty of the Town of Huntington or their successors, the board of trustees of the Town of Huntington and not of the town board.

Legislative acknowledgment of this legal title in the trustees of the Town of Huntington is found in former statutes.

By chapter 105 of the Laws of 1872, the Town of Babylon was carved out of the Town of Huntington. This act directed the trustees of the freeholders and commonalty of the Town of Huntington to execute all releases and conveyances necessary to effectuate the provisions of the act; it appointed the supervisor and justices of the peace of the Town of Babylon, ex officio, trustees of the Town of Babylon, with power to hold, manage, control, convey and dispose of the real estate of the Town of Babylon.

Thereafter and before delivery of the conveyance by the trustees of the freeholders and commonalty of the Town of Huntington to the board of trustees of the Town of Babylon of the land held by the former within the limits of the newly formed town, the Legislature enacted chapter 492 of the Laws of 1872 abolishing the office of the trustees of the freeholders and commonalty of the Town of Huntington and creating in its place, the board of trustees of the Town of Huntington, to consist of the supervisor, assessors and town clerk, and vested them with “ all the rights, privileges, powers, duties and jurisdiction heretofore enjoyed by such trustees, over the real and personal property of the town of Huntington.” (Italics supplied.)

Thereafter the board of trustees of the Town of Huntington, by deed dated January 3, 1873, conveyed to the trustees of the Town of Babylon “ all such right, title, interest, property, possession, claim and demand as they, the said Board of Trustees of the Town of Huntington, have or ought to have in or to all or any lands or real estate which is situated in the Town of Babylon ’ \

Thus, by progressive legislative acts of the Colonial Legislatures and subsequent Legislatures, this State has continued the legal existence of the trustees, has recognized their legal title to the lands and confirmed their power.

Comparison of the powers and duties of the board of trustees, as they have existed and have been exercised, with the provisions of chapter 816 of the Laws of 1952, clearly demonstrates that this act is but a declaratory and confirmatory one.

The avowed purpose of the enactment of the present legislation was to clarify the distinctions between the town board of the Town of Huntington and the hoard of trustees of the Town of Huntington and to define and confirm the powers of the hoard of trustees of the Town of Huntington.

Chapter 816 of the Laws of 1952 confirms all acts heretofore taken by the board of trustees in the exercise of their powers under the Nicholls, Dongan and Fletcher patents. Among these powers is the power of holding legal title to the common lands in a proprietary capacity for the benefit of the inhabitants of the town (Robbins v. Ackerly, 91 N. Y. 98; Town of Southampton v. Mecox Bay Oyster Co., 116 N. Y. 1; People ex rel. Howell v. Jessup, 160 N. Y. 249, 262, supra; Sammis v. Town of Huntington, 186 App. Div. 463, 467). We have held that the title to lands under water remains in the board of trustees. Heretofore the trustees’ title to structures erected on submerged lands and their power to grant rights to take oysters from such lands have been judicially approved. The dredging contracts here, whether they be characterized as contracts for the sale and disposal of gravel and sand, or for the dredging of Huntington Harbor and Bay involve actions on the part of the board of trustees which were essentially proprietary in nature. The trustees holding the legal title to the land under water alone possessed the power to enter into such contracts. The trustees had the exclusive right to enter into a contract to dispose of sand and gravel in the soil or bed of the harbor and bay (Sammis v. Town of Huntington, 186 App. Div. 463, 467, supra; L. 1888, ch. 279). Any improvements to the harbor or bay were consequential benefits incidental to the removal of the sand and gravel. The dredging contracts did not restrict the dredging corporation to specified channels. On the contrary, the areas specified in the contract comprised virtually the entire area beneath Huntington Harbor and a large stretch under shallow water in Huntington Bay. The dredging corporation undertook no obligation to dredge these waters unless the operations proved to be commercially profitable. The dredging-company could abandon the dredging operation under these circumstances. This contract condition is inconsistent with the purpose of a contract entered into with navigation as its primary object. These contracts thus show on their face that their dominant purpose is not to deepen this yachting harbor but to sell or dispose of sand and gravel. Benefits flowing from the improvement of the harbor and bay, valuable though they may be, were subsidiary to the prime purpose of the contracts. In any event. the contracts do not relate to navigation in the sense that they pertain purely to dominion, control or regulation of navigable waters by blocking free and unlimited passage over them. The cases cited by the dissent are not in point. In each of those cases, there was some form of dominion or control of navigable waters in that they involved the erection of permanent structures which would prevent unlimited and free access over the navigable waters, concerned contracts entered into by the United States Government, or had as their single objective the absolute commitment of funds of the community to a contract obviously designed solely to improve navigation according to specific plans and specifications.

The right to sell or dispose of the sand and gravel necessarily conferred the authority to dredge, otherwise the sand and gravel could not be sold.

The legislative ratification and confirmation of the right to exercise such a power does not result in a ratification of the contract. The contract must be in the public interest and not be the cause of waste or injury to public property. The board of trustees is not dispensed from accounting as to the adequacy of the consideration or the disposition of the proceeds. However, such questions must be decided in actions bearing on those issues.

To uphold the plaintiffs’ contention that no title to the lands was vested in the trustees, we must find that all the acts of the Legislature must be construed to have no force or effect. Such a construction is entirely without a precedent. The authority of the Legislature to define, clarify and confirm powers of trustees or to deprive them of their powers is discussed in People ex rel. Squires v. Hand (158 App. Div. 510, 515), the court there stating:

“ But this charter did not surrender control over the town officials or erect independent governmental agencies that should forever remain beyond the reach of the Legislature. Such a perpetual imperium in imperio would have been as repugnant to British colonial administration as its inequality and favoritism are opposed to our present political standards.

“ All these charters have been the subject of legislative modification. No court has questioned this power to make such changes, as such grants are not private but public and governmental. That in its radical modification of the powers of the Southampton trustees, the Legislature responded to a popular demand in 1818, does not detract from its exercise of the right to interfere with these officials. It then took from the chartered town trustees the greater part of their powers, which it conferred on the newly formed board of proprietors.

Huntington’s Dongan patent had complete revision in 1872. The territory of Babylon was set off (Chap. 105) and later (Chap. 492) the charter trustees of Huntington were abolished and new town officers substituted. Similar important modifications were enacted in respect to the trustees of Brookhaven. (Laws of 1898, chap. 480 § 4, as amd. by Laws of 1899 chap. 73.) When this constitutional objection was urged as to New York city, it was held that the Dongan charter was governmental and not private, and, therefore, was subject to full power of amendment. (Demurest v. Mayor, 74 N. Y. 161.)

‘ ‘ The fact that these trustees at one time had title to the common lands, and have also title to the lands under water and are vested with riparian rights does not make them the less public. Such title is held in trust for all the inhabitants as a public and governmental agency. The Legislature can, therefore, change the number of such trustees, and can make their term of office biennial to conform to the elections of other town officials.”

With the legislative acts and precedents in mind, it cannot be supposed in the absence of a specific restriction that the Legislature intended that the trustees must have prior authorization from the electors. In searching for an authority for such a procedure, the statutes, defining the powers of trustees in contradistinction to other legislative acts providing for prior authorization, reveal nothing requiring the enforcement of such a condition. The reports of adjudicated cases in our courts show that in the early days of the towns of Suffolk County and of the Town of Huntington, approval at town meetings of the actions of the trustees of the freeholders and commonalty of the town was customary. (Denton v. Jackson, 2 Johns. Ch. 320, 326.) On the other hand, the evidences are many that, with the growth of the population and increases in the number of transactions consummated by the trustees, prior authorization of the electors was seldom sought or obtained. Customs and practices were altered indicating that there was no legal compulsion to hold meetings. From 1689 to 1755 meetings were held yearly or twice yearly to authorize specific transactions, from 1787 to 1830 less frequently, and from 1842 to 1909 occasionally. Inspections of the minutes of the records of the Clerk of Suffolk County involving about two hundred transactions of titles to real estate, disclose only a small number of authorizations by electors. To hold that trustees lacked the power to transact their business on their own resolution is to read into prior legislative acts and the 1952 statute a restriction plainly not a part of the statutes, a restriction contrary to actual practices as revealed by official records and a restriction casting doubt on the security of transfers of titles of great communities in Suffolk County.

No one can read the history of these various legislative acts and the cases dealing with trustees’ activities without realizing that boards of trustees have always possessed all of the powers enumerated in the Act of 1952.

The Legislature having confirmed the existence of this board of trustees on prior occasions surely has the power to enact a statute defining, clarifying and confirming its powers and ratifying the exercise of such powers.

Therefore we conclude that chapter 816 of the Laws of 1952, together with the prior legislative acts and decisional law, conclusively establish the powers of the board of trustees to enter into the contracts described in Proposition No. 1 without the approval of the electors at town elections. Such a construction of the statute does not extend the trustees ’ proprietary powers so as to include important governmental powers or to interfere with the coexisting town board. This does not mean, however, that the statute ratifies the contracts; it only confirms the power of the trustees to enter into the contracts. Such a definition and confirmation of the powers of the trustees does not and cannot be construed to be a ratification of any corrupt or improvident conduct indulged in by the trustees in connection with the exercise of these powers nor protect them against the consequences of a suit or proceeding in which a violation of their trust is proved.

We now turn to a consideration of the question of whether chapter 816 of the Laws of 1952 is liable to objection on the ground that it shows a substantial departure from the provisions of the Constitution.

It is fundamental “ that nothing but a clear violation of the Constitution will justify a court in overruling the legislative will. Every statute is presumed to be constitutional, and every intendment is in favor of its validity.” (Matter of New York Elevated R. R. Co., 70 N. Y. 327, 342.) The presumption of constitutionality of chapter 816 of the Laws of 1952 has not been overcome.

We said in New York Central & H. R. R. R. Co. v. Williams (199 N. Y. 108, 127, affd. 233 U. S. 685): “ Again and again the courts of this country have asserted the proposition, in almost every form in which the English language can phrase it, that it is their duty to uphold a statute enacted by the legislature as constitutional if it is possible to do so without disregarding the plain command or necessary implication of the fundamental law. If the lawmakers have not violated the Constitution their work must stand until they themselves destroy it, no matter what the courts may think of the wisdom or probable effect. The courts have no right to set aside, to arrest or nullify a law passed in relation to a subject within the legislative authority on the ground that it conflicts with their notions of natural right, absolute justice or sound morality. ’ (Slack v. Jacob, 8 W. Va. 612.) ” (Emphasis added.)

Chapter 816 of the Laws of 1952 does not violate the requirements of section 15 of article III of the Constitution as the act embraces only one subject and its entire subject matter is expressed in its title. The title states that the purpose of the act is to ratify and confirm the legal title of the trustees and to ratify and confirm the acts of the board of trustees and define the powers and duties of the board. Section 2 deals with the powers subsidiary to the relationship of the status of a title holder. Section 3 confirms the actions performed in the exercise of the powers. Section 4 spells out the definition by distinguishing the status of board of trustees from the town board and characterizes the nature of the trust and the additional and alternate remedy available to review the performance of the powers.

In Burke v. Kern (287 N. Y. 203, 213) we said: In applying the constitutional provision, the courts have formulated various tests, chief among which has been a limitation of the subject-matter to one subject, which, however, may embrace the carrying out of that subject-matter in various objective ways, provided the objectives are naturally connected with the subject-matter and the title could be said to apprise the reader of what may reasonably be expected to be found in the statute.”

The statute before the court meets the test in every respect since every provision is directly referable to the subject matter described in the title. The title meets the constitutional requirements by expressing fairly and unequivocally the subject of the Act. (People ex rel. Olin v. Hennessy, 206 N. Y. 33; People ex rel. Corscadden v. Howe, 177 N. Y. 499, 504.)

The references in chapter 816 of the Laws of 1952 to the Town Law, to article 79 of the Civil Practice Act, and to section 1307 of the Civil Practice Act are not such an incorporation as is prohibited by section 16 of article III of the Constitution. In People ex rel. Everson v. Lorillard (135 N. Y. 285, 291) we stated: When a statute in itself and by its own language grants some power, confers some right, imposes some duty, or creates some burden or obligation, it is not in conflict with this constitutional provision because it refers to some other existing statute, general or local, for the purpose of pointing out the procedure, or some administrative detail, necessary for the execution of the power, the enforcement of the right, the proper performance of the duty or the discharge of the burden or obligation.”

The remedy provided for in chapter 816 (subd. 4), stating that the acts of the trustees are subject to review by the Supreme Court under the provisions of article 79 of the Civil Practice Act, is in addition to and alternative to the remedies available to taxpayers and aggrieved parties under section 51 of the General Municipal Law and article 78 of the Civil Practice Act, respectively. The trustees here have not only the status of trustees but also the status of public officials. Their responsibility and accountability continues in respect to all actions involving public interests.

Since we have concluded that the exercise of the powers of the board of trustees in relation to the making of the contracts set forth in Proposition No. 1 did not require a resolution of the town board, and the prior authorization or subsequent approval by qualified electors at a town election, no real controversy exists as to the resolution of the town board or Proposition No. 1.

In the light of this decision no purpose would be served by a discussion of the proposition which is a nullity. Therefore, the judgment of Special Term to the extent that it dismissed the complaint was proper, and the judgment of the Appellate Division should be affirmed.

Van Voorhis, J.

(dissenting). This is one of a series of taxpayers’ actions or proceedings affecting the affairs of the Town of Huntington, Suffolk County, Long Island, which are enumerated as follows:

(1) A proceeding under article 78 of the Civil Practice Act and consolidated actions under section 51 of the General Municipal Law, begun in March, 1949, attacking the acquisition by the board of trustees of the Town of Huntington of 22 acres of land for the establishment of a public bathing beach at Centerport within said town.

(2) A taxpayers’ action commenced under section 51 of the General Municipal Law in January, 1951, to (a) declare illegal and void two contracts by the board of trustees of said town with the United States Dredging Corporation, dated November 9, 1948, and January 25,1949, for the dredging of portions of Huntington Bay and Huntington Harbor, and providing for the sale and transfer of title to the sand and gravel thus excavated; (b) determine that the making of these contracts by the said town officials constituted “ void and illegal official actions, omissions and misconduct; that the aforesaid removal and appropriation, use and sale of the sand, grit or gravel of the Town of Huntington constitutes a waste and injury to the property, funds and estate of said Town ”; (c) compel the United States Dredging Corporation, and its officers, to account for all sand and gravel thus removed or appropriated, used or sold by them and for judgment against them and the town officials for the fair value of sand and gravel so claimed to have been converted; (d) declare illegal and void leases purporting to have been made by said trustees from H. B. M. Parking Corporation of five public parking places at different locations in Huntington Village, Huntington Station, East Northport and on Gerard Street Extension, and for judgment against the defendants (other than United States Dredging Corporation and its officers) for moneys paid to H. B. M. Parking Corporation as waste; (e) enjoin the expenditure of about $78,000 in funds received by the trustees from the sale of gravel pursuant to the said dredging contracts, and other income arising from town lands, without authorization by the town board or by special town election, and to compel such moneys to be applied pursuant to town budgets in reduction of taxes, and for judgment against defendant town officials for portions of such moneys expended without such authorization, and for other relief.

(3) An action commenced May 1,1951, to restrain the submission to the electors of the Town of Huntington at a special meeting appointed to be held May 15,1951, of a proposition purporting to ratify the acquisition and development by the trustees of the Genterport Beach project, the letting of the two dredging contracts which have been previously described, the acquisition of various lots for recreation fields in Greenlawn, Bast North-port and Huntington Station, and separate parking lots in Huntington Village, Huntington Station and East Northport and on Gerard Street Extension, and the use by the trustees of the revenues from the dredging contracts and other sources for these purposes. The complaint in this action likewise asks for judgment declaring the said proposition to be null and void upon grounds about to be discussed.

It is this third action that is now before us on appeal, attacking the validity of the said proposition presented to the special town meeting on May 15, 1951. Before coming to grips with this question, it is necessary to mention the form of organization of the Town of Huntington, and to describe briefly the status of these other litigations.

The Town of Huntington was founded under colonial patents from the British Crown in the 17th Century. These patents, to be described later, vested title to the common lands in trustees, who were also constituted as the governing body of the town. Their governmental functions became vested later in the town board, but the trustees have retained title to those portions of the land granted by the Crown which they have not subsequently alienated. The same town officials who are members of the town board and the town clerk ex officio constitute the present trustees by statutory enactment (L. 1929, ch. 101). These dual public functions have been a fertile source of confusion and litigation.

The first of these litigations to be tried was the article 78 proceeding and the consolidated taxpayers’ action above described under (1), attacking the legality of the Genterport Beach project. Upon appeal, the Appellate Division dismissed the article 78 proceeding but sustained the taxpayers’ action, holding as follows: “ The fact that the trustees as such had or have the power to hold town property does not empower them to acquire real property without compliance with sections 81 and 220 of the Town Law. The trustees were, therefore, without authority to purchase and maintain the beach and were without jurisdiction to do that which they did. This could he done pursuant to section 64 of the Town Law, only hy the town hoard and then only upon approval of the qualified electors at an election (Town Law, §§ 81, 220). We regard the acquisition and improvement of the tract as accomplished by the town board even though purportedly done by the same personnel, other than the town clerk, as trustees.” (Knapp v. Fasbender, 278 App. Div. 970, 971; italics supplied.)

These acts in the name of the trustees even when considered as having been performed in the capacity of the town board, were held to have been ineffectual in the absence of a valid submission to the qualified electors of the town. The Appellate Division also held that the cost “ was defrayed out of unexpended budget balances which in turn could not be utilized for the acquisition of a park or playground or parking place save upon approval of qualified electors. (Mander v. Coleman, 109 App. Div. 454 [3d dept.]; Leffingwell v. Scutt, 221 App. Div. 462 [3d. dept.].) ” The town officials were held personally liable, but the judgment entered upon the order of the Appellate Division included by its direction a provision for the holding of a legal election, at which an opportunity will be afforded to adopt or reject an approval of the action of the defendant officials and staying the execution of this judgment until such election is had with a validating effect; otherwise the judgment to be enforced.”

Notwithstanding that the proposition of May 15,1951, which is the subject of the instant appeal to this court, included the Centerport Beach project and had already been adopted when that decision was rendered by the Appellate Division, it was not relied upon but another subsequent special election was conducted at which the Centerport Beach project alone was presented to the electors, in the form of a proposition which recited the cost and identified by metes and bounds the real property acquired. The appeal taken to this court in the Centerport Beach case was withdrawn by stipulation after the special town meeting approved that separate project (303 N. Y. 803).

The holding that the trustees could not acquire real estate and that the town board could only do so for such purposes after public referendum under sections 81 and 220 of the Town Law, would likewise invalidate the acquisition of the parking areas and recreation fields which were also part of the subject matter of the proposition before the special town meeting on May 15,1951, although they were not directly at issue in the Centerport Beach action. The May 15, 1951, proposition — at issue upon the instant appeal — appears not to have been relied upon to validate any of these transactions. Instead, after Huntington had become a town of the first instead of the second class, the town board adopted a resolution to acquire these parking areas and recreation fields subject to permissive referendum under sections 90-91 of the Town Law.

The reliance which is now placed — for the first time—upon the proposition of May 15, 1951, appears to concern the only remaining subject which it purported to cover, to wit, the dredging contracts. These contracts, in a monetary sense, are the largest of the projects included in this proposition. They provide for the sale of gravel at from 9 cents to 12 cents a cubic yard to be paid to the trustees, with the privilege in the United States Dredging Corporation of taking unlimited quantities of sand without charge. The complaint in the action above described as (2) alleges that in excess of $1,500,000 in profits had been derived by this corporation while the contracts still had four and three-quarters years to run. About $100,000 had been paid to the town trustees on these contracts by about the same time. They had assumed to exercise the power to spend these funds, or a substantial part of them, in such manner as they deem to be in the public interest, without being subject to the controls and safeguards imposed by the Town Law and other statutes regulating the government of the town. They contend that this town proposition of May 15,1951 (among other things) is an appropriation measure, ratifying and confirming their expenditures — if any confirmation was necessary— although no figures are mentioned in this proposition, and it is impossible for anyone voting for it to tell from reading it how much is being appropriated for what object.

No determination has been made and the evidence is not before us to establish whether the allegations in the complaint in action (2) challenging the legality of these dredging contracts are true. That action has not been tried.

It now becomes necessary to analyze the force or effect, if any, of the proposition passed at the special town meeting of May 15, 1951, the validity of which is challenged by the complaint in this action. The authority for conducting special town elections is article 6 of the Town Law. Section 82 of this article of the Town Law requires: “ The voting upon a proposition shall be by ballot and each proposition shall be separately stated and numbered thereon.” The point of this provision is that each proposition shall be voted upon separately lest by combination a popular project be used to carry an unpopular project. This proposition combined at least three different subjects, which were not separately stated or numbered and had to be voted upon together. Section 223 of the Town Law provides that no obligation shall be incurred for any public improvement which is authorized by a town election “ in excess of the amount specified * * * in the proposition adopted at the town election.” This proposition fastened numerous liabilities upon the Town of Huntington if it be upheld, but it contained no recital of the amounts of any of the liabilities to be created by adopting the proposition. It did not even put the voters upon notice that it would create any obligations of the Town of Huntington. There is no recital concerning the contents of the dredging contracts except that they are “ with the TJ. S. Dredging Oorp. for the dredging of Huntington’s harbors and bays ” coupled with mention that there were to be ‘6 revenues therefrom ’ ’, which had been used or were to be used for the other projects. The circumstance is not mentioned that the United States Dredging Corporation could take all the sand that it wanted without charge, without being obligated to purchase any minimum quantity of gravel, or that dredging operations might be abandoned at any stage if they proved to be commercially unprofitable. No mention was made of the selling prices of the gravel nor of anything else in these contracts.

Twice previously the voters of the Town of Huntington rejected propositions to contract with the United States Dredging Corporation to deepen these waters and to dispose of the sand and gravel. In 1930 such a proposal was defeated by a resident property owners’ vote of 393 to 94. In 1935 a similar proposal was voted down by 2,035 to 785. Those dredging proposals were then submitted separately. At the special town meeting of May 15, 1951, this similar proposal was combined in a single proposition with the more popular Centerport Beach project and the acquisition of recreational fields in Greenlawn, East Northport and Huntington Station, as well as the public parking areas in Huntington Village, Huntington Station, East Northport and on Gerard Street Extension.

The dredging of Huntington Harbor and Bay and the sale or other disposition of sand and gravel bears no discernible relation to the acquisition and development of 22 acres at Centerport Beach, or these various recreational fields and parking areas. This single proposition to ratify these scattered projects supplied no clue to the qualified voters as to what parcels of real property had been bought with the money of the town, or concerning how much had been paid for them. In evidence are 20 deeds and 10 land contracts, dated in 1947 and 1948, covering various parcels of land, some connected, some disconnected, which it is impossible to integrate into the description of what was submitted to the voters for ratification. No identification of these parcels was presented even by reference, let alone by description, no maximum or other cost figure of anything was presented to the voters in the proposition adopted at the town election, and no common plan has been shown to exist which unites these undertakings. The short and sketchy outline contained in Proposition No. 1 ”— there were no other propositions — that was submitted to the voters conveys no clear nor adequate idea of what they were to approve, nor did they have any means of knowing what would be the amount of the ensuing liabilities to be incurred by the Town of Huntington if they approved the proposition.

The purpose of separately stating propositions of this nature and their respective costs is stated in Village of North Tonawanda v. Western Transp. Co. (16 Abb. Prac. [N. S.] 297, 300) to be “ to enable each elector to vote separately for or against each object specified, and for or against the amount proposed to be raised for each object.” In McQuillin on Municipal Corporations (3d ed., Vol. 15, pp. 255-257), it is said concerning the same subject that “ there must be a separate proposition on the ballot for each distinct, unrelated and independent object or purpose for which indebtedness is contemplated, showing separately the amount desired for each, so that the elector may freely express his choice on each without thereby affecting the others.” McQuillin adds that each proposition should be stated separately and distinctly ” so as “ to prevent the joining of one local subject to others in such a way that each shall gather votes for all, and thus one measure, by its popularity or its apparent necessity, carries other measures not so popular or necessary and which the people, if granted the opportunity of separate ballots, might defeat.”

To the same effect is Village of Hempstead v. Seymour (34 Misc. 92, 95); and this rule regarding the submission to the electorate of local public works projects is followed in other jurisdictions: (State ex rel. City of Joplin v. Wilder, 217 Mo. 261; Blaine v. City of Seattle, 62 Wash. 445; Lanigan v. Town of Gallup, 17 N. M. 627, 642-644; City of Denver v. Hayes, 28 Col. 110).

Ratification imports knowledge of the facts material to the matter to be sanctioned retrospectively (Weber v. Bridgman, 113 N. Y. 600). Propositions to be submitted to the people are required to recite the basic facts concerning the matter to be approved. This need was recognized in Special Term’s opinion which stated: “ Such ratification was obtained by the special election of May 15, 1951. I find from the facts adduced at the trial that there was no confusion in the minds of the voters at the time of election with reference to the proposition in question. * * * In addition, the acts as to which ratification was sought had been in operation and use for some time so that the citizens of Huntington had knowledge of them.”

The voters could not have learned the rudimentary facts from any recitals in this proposition. The record contains no evidence that they had learned them from other sources. When the town supervisor was asked how much money had been spent on one of these projects, he replied: “ I couldn’t even guess.” Questioned concerning the cost of various others, he answered: I wouldn’t have the slightest idea.” The dredging project, which was the largest, was thus characterized in his testimony: Q. Would you say it would cost many times more than $5,000 to dredge that harbor? A. It would have cost more than millions of dollars to dredge that harbor.” The record does not disclose what moneys had actually been paid or obligations incurred for these public works. If the costs of these projects were not known to the supervisor, who is the fiscal officer of the town, the trial court could not have taken judicial notice that the voters knew the costs. It is to insure that the voters know what expenditures they are authorizing or ratifying that section 223 of the Town Law requires that the expense of any public improvement shall be specified in the proposition adopted at the town election. The people may have known that dredges had been operating in the harbor and bay, that a public bathing-beach, playgrounds and parking areas had come into being in various parts of the town, but there is no evidence that they knew by whom or on what terms these projects had been authorized or what they had cost or of what they consisted. When it came to the proposition for approval of the Centerport Beach project after the decision by the Appellate Division in action (1) above, its proponents were quick to discover the necessity for stating the amount of money to be appropriated as well as identifying the real property which had been acquired and improved. That submission stands in complete contrast to the form of the proposition of May 15, 1951, which is invalid and ineffectual for any purpose.

In our view, this is the only question for decision upon this appeal. Not all of the members of the court share this view, and some consider that the decision of the action is controlled by chapter 816 of the Laws of 1952. We give effect to the law as it exists at the time of our decision (Matter of Tartaglia v. McLaughlin, 297 N. Y. 419; People ex rel. Clark v. Gilchrist, 243 N. Y. 173, 180). But giving full effect to this local law, it is undisputed that it does not affect,the town proposition of May 15, 1951. Neither does it purport to ratify any possibly illegal aspects of these various improvements and appropriations, and if it did it would be unconstitutional. An important object appears to have been to quiet title to real estate in the Town of Huntington. It contains no reference to these dredging contracts, Centerport bathing beach, parking or other projects mentioned in the town proposition of May 15, 1951, and only by a strained construction could it be deemed to apply to them. I shall now discuss those questions, as well as the reasons on account of which we think that they are not involved upon this appeal.

The sole issue in this action, under the pleadings and as it was tried, is the validity of the proposition passed at the special town election of May 15, 1951. The effectiveness of that town proposition might well have been decided in an action challenging the legality of the public improvements to which it refers. That is not what occurred. What happened is simply that two weeks before the special town election was scheduled to be held, plaintiffs commenced this action to enjoin the conduct of the election upon the ground that the proposition to be submitted to the qualified electors to approve these improvements was inadequate and combined several subjects, and if adopted would be null and void. A temporary injunction was refused, with the consequence that the special election occurred before the suit was reached for trial, and it thereupon became one for a declaratory judgment concerning the validity of the proposition which by then had been passed at the election. It does not appear from this record whether these dredging contracts would have been illegal except for this town referendum, no concession of that kind was made, nor was their legality presented in this action which was brought merely to restrain the conduct of this special election. After the election, the court might have declined to assume jurisdiction to render a declaratory judgment (Bules Civ. Prac., rule 212), but its assumption of jurisdiction could not and did not transform this action into one testing the legality of these public projects. It merely tests the legality of the confirmatory proposition that was passed at the town election.

If the town proposition of May 15, 1951, be held to be invalid — which is the maximum relief that can be granted to plaintiffs in this action — that does not amount to an adjudication that the improvements to which the proposition refers were illegally undertaken or completed. It merely amounts to deciding that the town proposition of May 15, 1951, was without force or effect, and leaves the status of the improvements where it would have been without any referendum to the voters at an election. This local law (L. 1952, ch. 816) is not claimed by anyone to bear upon the effectiveness of this special town election. Reading the statute demonstrates that, whatever else it may accomplish, it has nothing to do with the only matter that is at issue here. This is recognized in the brief for defendants (p. 29), which states that “ the only question before the Trial Court and the Appellate Division was whether the election of May 15th was effective for any purpose.” If that proposition was ineffective — as it clearly was — that would not invalidate the improvements, which may not have needed ratification. This record does not show what was their legal status. Defendants’ brief states (p. 29) that if claims of illegality concerning these improvements had been presented for adjudication in this action, “ it would have been necessary to have argued the effect of Chapter 816 of the Laws of 1952, which confirmed and validated all the acts of the Board of Trustees.” Defendants’ brief further states that the reason on account of which this local law was not urged upon the court as a defense in the instant action is that Those questions are presently being litigated by appellants in the pending case of Hubscher, et al. v. Fasbender, et al.”.

In view of the lack of discussion of this legislative act in the briefs upon the argument, a reargument was ordered by this court particularly with reference to whatever effect chapter 816 of the Laws of 1952 may have upon the subject matter of the action ” in order that we might be enlightened concerning the scope, purpose and validity of that statute. Long and careful briefs were submitted on the reargument analyzing the meaning and constitutionality of this local law. After the court had indicated that it was considering this statute, each side tried to make the most of it, but the parties were correct in the first instance in assuming that it is not controlling here.

In order to understand whether chapter 816 of the Laws of 1952 was intended to apply to these improvements, the colonial history of the town must be reviewed briefly.

The colonial patents established governmental powers in a “ Body Politick and Corporate ” by the name of “ the Trustees of the Freeholders and Commonalty of the Town of Huntington ”, and transferred to them title to real property. These were recognized as two separate functions, the latter usually being described as proprietary and the former as governmental in nature. Under the Dongan and Fletcher patents, the trustees were empowered to act in a governmental capacity ‘ ‘ so always as the said acts and orders be in no ways repugnant to the laws of our Kingdom of England and of this our province which now are or hereafter shall be established ’ ’. In 1691, existing patents were ratified by act of the colonial Legislature and, after the Revolution, the first New York Constitution of 1777 confirmed and ratified the royal grants and charters, but the continuance of governmental powers in the trustees was qualified by the words ‘ ‘ until otherwise directed by the legislature ’ ’. Later the Legislature did direct otherwise, divesting the trustees of their governmental powers and subjecting the Town of Huntington to the governmental provisions of the Town Law, County Law, Highway Law, Tax Law and other applicable State statutes.

Title to the real estate acquired under the colonial patents remained in the trustees, however, to be held or sold and transferred pursuant to those patents (Robins v. Ackerly, 91 N. Y. 98; Trustees of Brookhaven v. Strong, 60 N. Y. 56; Town of Southampton v. Mecox Bay Oyster Co., 116 N. Y. 1; People ex rel. Howell v. Jessup, 160 N. Y. 249, 262; Sammis v. Town of Huntington, 186 App. Div. 463, 467; People ex rel. Squires v. Hand, 158 App. Div. 510, 515). Instead of being appointed by English colonial governors, elected town officials came to act ex officio as members of the board of trustees of the Town of Huntington and to perform their proprietary functions (L. 1872, ch. 492; L. 1929, ch. 101). As far back as 1831, it was aptly recited in resolutions adopted by a town meeting of the Town of Southampton, that there should be “ ‘ a law in regard to the powers and duties of the trustees, about which there began to be so many conflicting opinions as construed from the charter of Governor Dongan ’ ”. (Town of Southampton v. Mecox Bay Oyster Co., 116 N. Y. 1, 14, supra.) An act was passed defining these powers specifically in the case of Southampton (L. 1831, eh. 283), but no such provision was adopted in the case of the Town of Huntington.

Chapter 816 of the Laws of 1952 appears to have been intended to define somewhat more precisely the powers and duties of the trustees of the Town of Huntington. Section 1 recites the Mcholls, Dongan and Fletcher Patents, and confirms legal title to the patented lands in the board of trustees as presently constituted in succession to their colonial predecessors. Section 2 begins by stating that “ The powers to acquire, hold, manage, lease, control, convey, grant and dispose of property both real and personal for the benefit of the residents and taxpayers of the Town of Huntington heretofore exercised by said Board of Trustees of the town of Huntington and/or its predecessors, are hereby ratified and confirmed in said Board of Trustees ”. (Italics supplied.)

Thus far the trustees are being confirmed in the powers expressly granted to their predecessors by the colonial patents, plus such as they and their predecessors have exercised by custom. Section 2 then continues: ‘ ‘ and said Board of Trustees is hereby authorized and empowered to continue to hold, manage, lease, convey, grant, invest and reinvest such property and funds as Trustee for the residents and taxpayers of the Town of Huntington ”. (Italics supplied.)

This language manifests that the powers described in the first clause are continued in the trustees to be exercised by them in the future, as well as confirmed with respect to the past. The last clause in section 2 empowers the board of trustees “ in furtherance of its said trust to acquire in its own name by gift, purchase or lease and to maintain and improve property of any nature either real or personal, for the benefit of the residents and taxpayers of the Town of Huntington.” (Italics supplied.)

It is difficult to believe that by the insertion of this last clause the Legislature intended to add to the powers which had theretofore customarily been exercised by the board of trustees. Such a construction would extend their proprietary capacity so as to include the exercise of important governmental powers over the affairs of the Town of Huntington. It would revert to colonial days when the trustees not only held title to the common lands but also governed as a “ body corporate and politick ”. In their memorandum to the Legislature in support of this bill, which was submitted to the court upon the reargument, defendants (as board of trustees and town board) stated that the trustees had been stripped of all governmental powers. It is possible, of course, by a literal interpretation, taking the words out of context, to say that power to “ purchase or lease and to maintain and improve property of any nature either real or personal, for the benefit of the residents and taxpayers of the Town of Huntington ’ ’ would transfer to the trustees jurisdiction over all construction projects and the entire public works of the town. In this view it would include the acquisition of land for public highways, their construction and maintenance, the purchase and repair of road machinery, the construction of public buildings and the operation of the whole improvement district system functioning in towns under the jurisdiction of the town board and other public officials as provided by the Town Law. If this clause in section 2 confers authority to dredge for the improvement of navigation, it also includes authority to acquire and improve public highways.

In reality there was no such legislative intent. The power to ‘ acquire ’ ’ applies only to such incidental lands or interests as may be necessary in order to protect the title or to supplement and thereby to realize the full value of the proprietary lands remaining in the trustees, whose only function is to conserve and sell them to the best advantage. The powers to ‘ ‘ improve ’ ’ and ‘ maintain ’ ’ the proprietary land are for the same objective. The correctness of this interpretation is shown by the language with which this clause commences, that these powers are conferred in furtherance of its said trust ”. The said trust ” refers to the proprietary function of these trustees as conservators and vendors of whatever remains of the colonial lands which were conveyed to their predecessors under these patents. Any other interpretation would be contradictory and incomprehensible. Literally, the power to acquire ‘ ‘ personal property * * * for the benefit of the residents and taxpayers of the Town of Huntington ” would include power to buy police cars or snowplows. Such an interpretation is precluded by the language limiting acquisition to such property as may be used “ in furtherance of its said trust ”. Personal property to be acquired must be such as is necessary to conserve or to sell the proprietary lands. The same is true of any real property to be acquired or improved by the trustees — it must be incidental to the performance of their proprietary function and not involve the assumption of governmental power.

If further demonstration were necessary that the Legislature intended to confine the application of this statute to the proprietary capacity of these officials, it is found in section 4, which states that the Town Law, except as it otherwise specifically provides, “ shall not apply to the acts of said Board of Trustees, and such acts shall be subject to review by the Supreme Court under the provisions of Article 79 of the Civil Practice Act of the State of New York. Such trust is hereby declared to be an express trust within the meaning of Section 1307 of the Civil Practice Act.” Manifestly it was not intended to render the Town Law inapplicable to the government of the Town of Huntington, or to restrict its application to any aspect of its affairs except the performance of the limited proprietary functions of these trustees. It would be inconceivable that the Legislature intended any part of the government of the town to be operated as an “ express trust ” subject to review by the Supreme Court. If such an object had been intended it would exceed the constitutional power of the Supreme Court, which is limited to the exercise of judicial power (N. Y. Const., art. VI, § 1; Matter of Richardson, 247 N. Y. 401). The Supreme Court would step out of its role if it were to participate in the administration of the public affairs of a town.

The main occasion for enacting chapter 816 of the Laws of 1952 appears to have been, as has been said, to quiet titles to real estate in the Town of Huntington. We were told upon the reargument that for the last 75 years the trustees have been accustomed to make grants of colonial lands without town meetings. In the early days the trustees took no action without town meeting authorization (cf. opinions by Chancellors Kent and Saxdeobd in Denton v. Jackson, 2 Johns. Ch. 320, and Town of North Hempstead v. Town of Hempstead, 1 Hopk. Ch. 288, affd. 2 Wend. 109, and likewise the opinion of this court in Lawrence v. Town of Hempstead, 155 N. Y. 297, 300). The Official Eeferee before whom the Centerport Beach action was tried said in his opinion that the trustees could do nothing without such authorization ”. This appears to have created uncertainty among title examiners concerning possible defects in titles to the numerous lots in Huntington which have been derived through trustee grants made during the major portion of the past century without having been authorized or approved by town meetings. Chapter 816 of the Laws of 1952 was designed to remove possible defects of this nature, by confirming the trustees in such powers relating to their proprietary functions as they (as well as their colonial predecessors) have exercised by custom. By enacting (§ 3) that “ All acts heretofore taken by said Board of Trustees in the exercise of the aforesaid powers are hereby legalized and confirmed and made effectual and valid as the official acts of said Board of Trustees ”, the Legislature clearly intended to confine any statutory ratification of past transactions to acts done by these town officials in their proprietary capacity as trustees.

The next inquiry is whether these dredging contracts and other public projects mentioned in the town proposition of May 15, 1951, were undertaken by the defendants in their proprietary capacity or as the town board. In the latter event, these acts were not affected by chapter 816 of the Laws of 1952. The name under which these officials assumed to act is immaterial. Where they have conducted matters pertaining to the government of the town in the name of the board of trustees, they are construed to have acted as the town board (Knapp v. Fasbender, supra). It was held in that case that the acquisition of land for the Centerport Beach project could only have been undertaken by them as the town board and did not pertain to their proprietary functions. This means that chapter 816 of the Laws of 1952 does not apply to the Centerport Beach project. The same is true of the acquisition of land for the various parking areas, baseball and other recreational fields in the town. The Appellate Division also held that the trustees could not appropriate funds from the dredging contracts for these purposes, which could only be done by the town board with the approval of the qualified electors, citing Mander v. Coleman (109 App. Div. 454) and Liffingwell v. Scutt (221 App. Div. 462). The projects themselves, said the Appellate Division, “ could be done pursuant to section 64 of the Town Law [entitled “ General powers of town boards ”], only by the town board and then only upon approval of the qualified electors ”.

Although not applying to any of these other public projects under the ruling in Knapp v. Fasbender (supra), can it be held that chapter 816 of the Laws of 1952 applies to these dredging contracts? Under such decisions as Robins v. Ackerly (supra) and Sammis v. Town of Huntington (supra), it may be that the title to lands under water remains in the board of trustees, and they may have a proprietary right to sell deposits of submarine sand and gravel as they could grant the right to take oysters and would have title to structures erected on submerged lands; to this extent their title under the colonial grants may be involved. Nevertheless, the letting of contracts for the dredging of navigable waters would ordinarily be a transaction governmental in character and therefore beyond the proprietary capacity of the board of trustees. 11 The right of property in the soil or bed of a navigable river or arm of the sea, and the right to use the waters for the purposes of navigation, are entirely separate and distinct.” (People v. Vanderbilt, 26 N. Y. 287, 292.) These contracts for the dredging of Huntington Harbor and Bay pertain to the use of these waters for the purposes of navigation and appear, therefore, to have been made in the exercise of a governmental function (People v. Steeplechase Park Co., 218 N. Y. 459, 472 et seq.; People ex rel. Swan v. Doxsee, 136 App. Div. 400, affd. on opinion below 198 N. Y. 605), even though they also dispose of sand and gravel in the soil or bed of these waters.

A similar question was presented in Lewis Blue Point Oyster Cultivation Co. v. Briggs (198 N. Y. 287, affd. 229 U. S. 82). In that action the plaintiff had leased from the colonial patent holders lands under navigable waters of Great South Bay, and sought to enjoin invasion of their oyster beds by a dredging contractor operating at the instance of the United States Government. Speaking unanimously through Judge Vanít, this court said (pp. 292-293): “Is the grant of submerged soil, which is so directly connected with the public right of navigation as to be incapable of complete separation therefrom, subordinate thereto to the extent necessary to promote and develop commerce? * * * For the same reason it is held that from grants of water land there is impliedly reserved the right of navigation, and, as a necessary part of so important a subject, the right to improve navigation for the benefit of commerce. * * * The patents in question are silent upon the subject of navigation in any phase. The crown did not grant any right that might interfere with navigation in its broad sense, because it could not, and the patents should be construed accordingly. * * * ‘ The implication springs from the title to the tideway, the nature of the subject of the grant and its relation to navigable tidewater, which has been aptly called the highway of the world. The common law recognizes navigation as an interest of paramount importance to the public. ’ ’ ’ The judgment of this court was affirmed by the Supreme Court of the United States in an opinion by Mr. Justice Lubton (229 U. S. 82).

The testimony upon the trial is to the effect that improvement of navigation was a primary object in letting these contracts, and it was so asserted in the memorandum which defendants submitted to the Legislature in support of this bill. It would therefore be reasonable to suppose that the dredging contracts were required by subdivision 6 of section 64 of the Town Law to be “ executed by the supervisor in the name of the town after approval by the town board ” subject to such referenda as might be required by law. Section 843 of the County Law recognizes this as a governmental function (renum. § 842 by L. 1951, ch. 652, § 24), by enacting that The board of supervisors of Suffolk county may provide for widening, deepening or dredging any bay, harbor, inlet or channel within its boundaries at the expense of the county and may appropriate moneys available for general town improvements in aid of federal or state projects for such purposes.” (Italics supplied.) This statute recognizes that the dredging of these waterways constitutes “ general town improvements ” overlapping the navigational functions of the county, State and nation, which signifies that dredging these waterways partakes of a governmental nature, so that, like highway improvement, it could be undertaken by the Board of Supervisors of the county as well as by the town.

This section of the County Law was the subject of a taxpayers’ action decided in this court in 1933 (Macrum v. Hawkins, 261 N. Y. 193), wherein the plaintiffs asked to enjoin the Board of Supervisors of Suffolk County from issuing $1,000,000 in dredging bonds, $500,000 of which was for expenditure in the Town of Huntington, including the dredging of Huntington Harbor. The record therein contains a report of the Suffolk County Regional Planning Board which states that the United States Government had dredged and was maintaining a channel 100 feet wide by 8 feet deep in Huntington Harbor (Record, p. 85).

In their capacity as trustees, defendants may have had a right to sell the deposits beneath these navigable waters without a curative statute, and in their capacity as town board subject to referendum to make contracts for the improvement of navigation in Huntington’s harbors and bays as in the case of highways. But no more than in the case of highways does this statute reach whatever they may have done in the exercise of their functions as town board. The trustees had no power over navigation, and could not act for the Town of Huntington in the improvement of navigation.

We are unable to agree with the majority opinion that the public right of navigation may not be directly involved. It was not within the province of the trustees to decide, for example, where a channel should be located or to what depths it should be dredged. These dredging contracts contain a map showing the areas and prescribing that the depth shall not be less than 10 feet nor more than 30 feet below the mean low water level. It is difficult to understand how specifying the depth and location of a channel did not involve navigation, and if these specifications were prescribed by the trustees, they would appear to have exceeded their powers. These contracts provide that if the dredging corporation uncovers rock or other obstruction too costly to remove, these shall be marked ‘ ‘ by buoy or otherwise, as to insure safety to navigation during its dredging operations ” and the dredging corporation agrees at its own cost and expense to procure all permits necessary from the Federal Government or other governmental authorities having jurisdiction, and shall comply with all rules and regulations of such governmental authorities and when the dredging is completed shall leave the dredged areas in such condition as may be required by such governmental authorities.” The United States Statutes At Large show that eight times between 1890 and 1913 appropriations were made by the Congress for the improvement or maintenance of Harbor at Huntington, New York ” and for the construction there of a lighthouse. In 1938 it was again adopted as a Federal project.

In the brief of the Suffolk County Board of Supervisors in Macrum v. Hawkins (supra) after reciting the proprietary ownership under colonial patents by the trustees of lands under water, the statement is made:

Such ownership is, however, subject to the right of the sovereign to enter upon the land under water for the improvement of navigation and such right may be exercised by the State or the Federal Governments without regard to the rights of those using the bottom for shell fishing or other purposes (Lewis Blue Point Oyster Co. v. Briggs, 198 N. Y. 287, aff'd 229 U. S. 82).

By the Act, Chapter 401, Laws 1931, the State has delegated its sovereign power in this respect pro tanto. Such delegation was proper (Walla Walla v. Walla Walla Water Co., 172 U. S. 1). In that case, the Court said (p. 9): ‘ State legislatures may not only exercise their sovereignty directly, but may delegate such portions of it to inferior legislative bodies as, in their judgment, is desirable for local purposes. ’

11 The State acts through the agency of the municipal corporation, though, here, before work can be done, the consent of the IT. S. Chief of Engineers and of the War Department must be obtained (U. S. Eiver and Harbor Act of March 3,1899, 30 U. S. Stat. 1151, Chap. 425, Sec. 10).” (Now U. S. Code, tit. 33, § 565.)

These repeated appropriations and improvements made by the Federal Government in the case of this same waterway indicate that navigation is involved, and that regardless of whether dredging is undertaken by the Federal Government, State, County or Town, the nature of the function is the same. In People ex rel. Palmer v. Travis (223 N. Y. 150, 163), this court stated that under similar colonial grants: 1‘ The most the town could claim, therefore, was title subject to the public right of navigation and commerce. (Lewis B. P. Oyster C. Co. v. Briggs, 198 N. Y. 287.) It could claim no more, for the sovereign could not grant more. His rights to such land and to tidal waters was twofold — proprietary as to the land, governmental as to the waters. (Matter of Mayor, etc., of N. Y., 182 N. Y. 361.)”

It was the function of the town board or some other governmental body and not that of the trustees to decide whether improvements to navigation were necessary or should be undertaken and to decide what should be done and what it should cost or would be worth. Although it is assumed that they were empowered to sell underwater deposits, they could not agree to accept as part of the consideration benefits which the town might derive from the improvement of navigation. It was not the trustees7 function to spend assets of the town for that purpose. The proceeds of the sale of sand or gravel or of other proprietary assets belonged to the town, and could not be spent or appropriated by the trustees except in such minor amounts as might be necessary to conserve the proprietary lands. They could not appropriate these funds for other projects.

One of the reasons on account of which it seems to us that the application of chapter 816 of the Laws of 1952 should not be decided in this action is that the issue was not tried of the extent to which navigation is involved in these dredging contracts. It is certain that they are related to navigation. Upon the other hand, the trustees appear to have had the power to sell underwater deposits of sand and gravel for their full value (as determined in the best judgment of the trustees acting in good faith), without deduction for any benefits arising from the improvement of navigation. In that event, the trustees might sell the right to take sand and gravel as they could sell the right to take oysters, provided that it did not interfere with the public rights of navigation. In that view, these would not be dredging contracts but exclusively contracts for the sale of submarine deposits, and all that was represented to the courts and to the Legislature about the valuable benefits arising from the deepening of Huntington Harbor would be irrelevant to the issue. One assumes from this record that the trustees sold these deposits beneath the waters of the harbor and bay for less than would otherwise have been received due to the benefits which they considered that they were conferring upon the Town of Huntington by improving the navigability of these waters. The effect of such a procedure would be the same as though the trustees had undertaken to spend money belonging to the town to improve navigation. How much that part of the consideration was worth, or whether the town’s assets should have been spent for that purpose at all, was not in the province of the trustees to decide, but in that of the town board or the County Board of Supervisors, subject to such referendum as might be required by law. A trial might disclose that the trustees, in their .best judgment, contracted at full value for the sale of the underwater deposits, and that these were not really dredging contracts. We should not assume that such is the fact without a trial of this issue. If in signing these contracts the defendants acted in their capacities both as trustees and as the town board, chapter 816 of the Laws of 1952 would not apply to so much of the transactions as fell within the functions of the town board. Under such a state of facts, this statute would not ratify or confirm the power to enter into these transactions. That would be the situation if a trial proved that part of the consideration for these contracts was deepening Huntington Harbor and Bay. A determination of that question should be reserved for the Hubscher action in the light of all of the facts bearing upon that issue; it should not be decided upon this record upon inadequate evidence taken for a different purpose.

The object of this statute could not have been to ratify every act which the trustees may have assumed to perform in excess of their proprietary powers since the American Revolution. Their proprietary functions as established by custom were protected against encroachment from the Town Law, hut this does not signify that town officials are not to be elected, taxes raised, public money appropriated, lands acquired, contracts for public improvements let and other functions of government performed under the usual statutes. Neither does it mean that by acting in the name of trustees, town officials can be freed from the fiscal controls that are imposed upon them by law as town officials.

If chapter 816 of the Laws of 1952 did attempt to settle these litigations, validate the dredging contracts as well as other public projects mentioned in the town proposition of May 15, 1951, and all acts which the trustees may have assumed to perform in excess of their authority during the course of a century and three quarters, and also to enlarge the trustees’ powers to enable them to undertake public works without being subject to the Town Law or other relevant statutes, it would be clearly unconstitutional. If it were to be construed in that manner, which its language indicates that the Legislature did not intend, it would not only comprise more than one subject, due to the same circumstances previously stated on account of which the town proposition of May 15, 1951 embraces more than one subject, but would also be more vulnerable to that infirmity in that it would purport to validate every usurpation of governmental power by the board of trustees since the colonial era. If, in addition to its other purposes, it sets up a new form of government in the Town of Huntington, by extending the power of the board of trustees to include public works, it would hardly be necessary to cite the case of Parfitt v. Furguson (159 N. Y. 111, 116) to establish that it is unconstitutional, where this court said: “ The establishing of a board of improvement for the town, and defining its powers and duties with reference to the lighting of the streets in the town, is one subject; that of ratifying and confirming illegal contracts is quite another subject.” (See, also, Wenk v. City of New York, 82 App. Div. 584.)

The removal of the ordinary financial controls over important aspects of town affairs is a subject by itself, which cannot be linked with the Centerport Beach project, dredging projects or any of the other undertakings which this statute could not constitutionally be stretched to cover (Matter of McCabe v. Voorhis, 243 N. Y. 401).

The judgment appealed from should be reversed and the proposition passed at the Huntington town meeting on May 15, 1951, should be declared to be invalid. If chapter 816 of the Laws of 1952 becomes the subject of any ruling, it should be held not to apply to any of the projects mentioned in that town proposition, and, if it be held to have been designed to ratify them, should be determined to be unconstitutional.

Desmond, Dye and Fuld, JJ., concur with Burke, J.; Van Voorhis, J., dissents in an opinion in which Conway, Ch. J., and Froessel, J., concur.

Judgment affirmed. 
      
       Local Finance Law, § 35.00; Town Law, § 81; Local Finance Law, § 38.00; Town Law, § 179.
     
      
      . The text of the proposition passed at the special town meeting on May 15, 1951, is as follows:
      “ proposition number one [there were no other propositions]
      Shall the action of the Supervisor, Justices of the Peace and Town Clerk of the Town of Huntington in acquiring for the town in the name of the Board of Trustees the 22 acre beach and park at Centerport, the various lots comprising the recreation fields in Greenlawn, East Northport and Huntington Station, the several parking lots in Huntington Village, Huntington Station and East Northport and the Gerard Street Extension; and in improving and maintaining the same; and in contracting with the TJ. S. Dredging Corp. for the dredging of Huntington’s harbors and bays and using the revenues therefrom for the foregoing purposes, be approved?”
     
      
      . The need for this, and for voting separately on all town appropriations which this proposition is in part, is stated again in section 106 of the Election Law: “All ballots for the submission of town propositions for raising or appropriating money for town purposes, or for incurring a town liability, to be voted at any town meeting in any town, shall be separate from all other ballots for the submission of other propositions or questions to the voters of such town to be voted at the same town meeting or election. Such ballots shall be endorsed ‘ballot upon town appropriations’.”
     
      
      . “ Air act to ratify and confirm the title of the trustees of the town of Huntington, Suffolk county, in and to certain lands therein and to ratify and confirm the acts of its board of trustees, and defining the powers and duties of such hoard. * ~ *
      
        “ Section 1. Legal title is hereby ratified and confirmed in the Board of Trustees of the Town of Huntington as successor to the Trustees of the Freeholders and Commonalty of the Town of Huntington under Chapter 492 of the laws of 1872 as amended by Chapter 101 of the Laws of 1929, to all lands described in the Governor Nicholls Patent recorded in Book No. 1 of Patents at Page 73, in the Governor Dongan Patent recorded in Book No. 6 of Patents at Page 338 and in the Governor Fletcher Patent recorded in Book No. 6 of Patents at Page 493, all in the office of the Secretary of State.
      
        “ § 2. The powers to acquire, hold, manage, lease, control, convey, grant and dispose of property both real and personal for the benefit of the residents and taxpayers of the Town of Huntington heretofore exercised by said Board of Trustees of the town of Huntington and/or its predecessors, are hereby ratified and confirmed in said Board of Trustees and said Board of Trustees is hereby authorized and empowered to continue to hold, manage, lease, convey, grant, invest and reinvest such property and funds as Trustee for the residents and taxpayers of the Town of Huntington, and in furtherance of its said trust to acquire in its own name by gift, purchase or lease and to maintain and improve property of any nature either real or personal, for the benefit of the residents and taxpayers of the Town of Huntington.
      
        “ § 3. All acts heretofore taken by said Board of Trustees in the exercise of the aforesaid powers are hereby legalized and confirmed and made effectual and valid as the official acts of said Board of Trustees.
      “ § 4. Except as therein otherwise specifically provided, the provisions of the town law, shall not apply to the acts of said Board of Trustees, and such acts shall be subject to review by the Supreme Court under the provisions of Article 79 of the Civil Practice Act of the State of New York. Such trust is hereby declared to be an express trust within the meaning of Section 1307 of the Civil Practice Act.
      
        “ § 5. If any clause, sentence, paragraph or part of this enactment or the application thereof to any person or circumstances, shall for any reason be adjudged by a court of competent jurisdiction to be invalid, such judgment shall not affect, impair or invalidate the remainder, and the application thereof to other persons or circumstances, but shall be confined in its operation to the clause, sentence, paragraph or part thereof directly involved in the controversy in which such judgment shall have been rendered, and to the person or circumstances involved. It is hereby declared to be the legislative intent that this enactment would have been adopted had such invalid provisions not been , included therein.
      
        “ § 6. This act shall take effect immediately.”
     
      
      . The only specific mention made of the trustees in the Town Law is said to be in subdivision 1 of section 64 empowering the town board to designate a bank as depository for funds of the trustees, and paragraph (b) of subdivision 18 of section 130 empowering the town, on application of the trustees, to adopt ordinances regulating the taking of shell fish from proprietary land.
     
      
      . 26 IT. S. Stat. 430, ch. 907 (1890): Improving harbor at Huntington, Long Island, New York, $10,000; 32 U. S. Stat. 334, ch. 1079 (1902): Improving harbors at Port Jefferson, Huntington * * *: Continuing improvement and for maintenance, $39,500; 33 IT. S. Stat. 1120, ch. 1482 (1905): Improving harbors at Port Jefferson * • * Huntington * * *: Continuing improvement and for maintenance, $62,500; 34 IT. S. Stat. 1077, eh. 2059 (1907): Port Jefferson * * * Huntington * * *: Continuing improvement and maintenance, $125,000; 34 U. S. Stat. 995, eh. 1638 (1907): “A .light and fog signal station at the entrance of Huntington Harbor and Lloyd Harbor, New York at a cost not to exceed forty thousand dollars ”; 35 IT. S. Stat. 829, ch. 264 (1909): Preliminary examination of harbor to be made; 36 U. S. Stat. 635, ch. 382 (1910): Improving harbors at Port Jefferson * * * Huntington * * *: Continuing improvement and for maintenance, $40,750; 37 U. S. Stat. 803, eh. 144 (1913): Improving harbor at Huntington, New York and maintenance, $5,000; 42 U. S. Stat. 1043, ch. 427 (1922): Preliminary examination, etc., of Huntington Harbor, New York, to be made by Secretary of War; 46 IT. S. Stat. 934, ch. 847 (1930): Huntington, New York; preliminary examination and survey directed to be made by Secretary of War: Huntington Harbor, New York; 52 IT. S. Stat. 803, ch. 535 (1938): Huntington Harbor, New York; House Doe. 638, 75th Congress: “Be it enacted * * * That the following works of improvement of rivers, harbors, and other waterways are hereby adopted and authorized, to be prosecuted under the direction of the Secretary of War and the supervision of the Chief of Engineers ”.
     