Hogan, J.
It is the settled law by numerous decisions of this court that where the property of an abutting owner is damaged by reason of work of an improvement in a public street, pursuant to lawful authority, a change in the grade of said street does not constitute a taking of property within the meaning of the Constitution, and the abutter is without remedy unless provision therefor is made by statute.
Section 951 of the charter of the city of New York, (L. 1901, ch. 466) the only statute called to our attention, provides in substance:
“ * *
*
there shall be no liability to abutting owners for originally establishing a grade; nor any liability for changing a grade once established by lawful authority,
except
where the owner of the abutting property has subsequently to such establishment of grade built upon or otherwise improved the property in conformity with such established grade, and such grade is changed after such buildings or improvements have been made. * * * ”
The property of plaintiffs was vacant and unimproved; plaintiffs did not own the fee in any part of the bed of Thomson avenue upon which their property abutted; a grade had been lawfully established on Thomson avenue for upwards of twenty years prior to 1907. It follows that if the work complained of by plaintiffs was in fact a change of grade of Thomson avenue and was carried on under express authority of law, a recovery for damages sustained by plaintiffs, other than for the encroachment of the foundation wall of the viaduct, cannot be sustained.
The trial justice found that the determination by the board of estimate and apportionment provided not.only for a discontinuance and closing of certain streets but
for a change of the grades of portions of streets,
and for the discontinuance of Thomson avenue at grade over the width of the freight yard of the railroad companies, and in lieu thereof for the carrying of Thomson avenue over the freight yard by a viaduct,
and for the elevation of the grade of Thomson avenue along the seventy-five feet frontage which plaintiffs’ lands had on said avenue;
that there had been a change of grade of Thomson avenue from a point thereof southwest of plaintiffs’ premises, to a point where the grade of the avenue reached the original grade of the same; that the elevation of grade in front of plaintiffs’ premises was for the purpose of an
approach to the viaduct (which viaduct was to commence at a point one hundred and sixty feet easterly of the southeast corner of plaintiffs’ land).
That the city contemplated, provided for, and actually made a change of grade on Thomson avenue in front of the premises of the plaintiffs is an established fact found by the court in this case. It was that change of grade that physically affected the lands of the plaintiffs. In view of such fact, was the conclusion of the trial justice that the construction of ,the approach in front of plaintiffs’ premises was unlawful, illegal and unauthorized, and not for a public use but an infringement upon the rights of the plaintiffs, justified ?
The conclusions of the trial justice were based upon a construction of certain .provisions of the agreement made between the city of New York and the railroad companies with reference to the work to be performed.
Section 442 of the charter of the city of New York provides:- “The board of estimate and apportionment is authorized and empowered,
whenever and as often as it may deem it for the public interests so to do,
to initiate a change in the map or plan of the city of New York, so as to lay out néw streets, parks, bridges, tunnels and approaches to bridges and tunnels and parks, and to widen, straighten, extend, alter and close existing streets, and to change the grade of existing streets shown upon such map or plan. * * * ”
The findings by the trial .justice disclose that the board of estimate and apportionment, so far as its procedure was concerned, complied with all provisions of the charter of the city of New York.
By the provisions of the charter above quoted, legislative authority was conferred upon the board to determine whether or not the interests of the public would be sub-served by a change of the map and plan of the city of New York, the establishment of new streets and bridges, or a change in the grade of existing streets. The power
of the legislature to delegate that authority to the city and the board cannot be questioned. The exercise of the authority conferred involved a peculiar knowledge of the needs of the public, to be acquired only by minute investigation, coupled with the expression of the people who were invited by public notice, as required by the city charter, to attend the meetings at which the proposed change of plan was to be considered.
Concededly the tracks of the railroad company, six in number, crossed Thomson avenue at grade. It was the intention of the railroad companies to acquire land and construct additional tracks. Important questions were before the board for determination, viz.: Were the six tracks crossing the avenue a menace not only to the safety of the citizens using the highway, hut alike to the public journeying upon trains operated across the same ? Would the presence of additional tracks increase the danger to the public ? Would danger be avoided and the public interests be- advanced by the construction of an overhead crossing in the nature of a viaduct, involving a change of grade in a portion of the avenue, even though such construction and change of grade might prove of benefit to the railroad companies ? The expenses incident to the change, the situation of property in the neighborhood, whether sparsely or thickly populated, the fact that streets proposed to be closed were merely map streets, and many additional considerations, were within the knowledge of the body dealing with the public needs of a great city.
The hoard of estimate and apportionment having determined, after due inquiry and consideration of the question, and having adopted resolutions that the proposed change would subserve the public interests by the discontinuance of certain streets existing only as map streets, change of grade and the construction of the work, having in view the abolition of grade crossings, the presumption is that such conclusion was reached in the exer
cise of a careful judgment, and the question arises, was it within the power of the judicial branch of the government to annul the determination of that legislative body and substitute its. judgment for the conclusions reached by the board empowered to decide the question of public interest.
In
People ex rel. Wood
v.
Draper
(15 N. Y. 532, 545) Chief Judge Denio wrote:
“
There is room for much bad legislation and misgovernment within the pale of the Constitution; but whenever this happens, the remedy which the Constitution provides, by the opportunity for frequent renewals of the legislative bodies, is far more efficacious than any which can be afforded by the judiciary. The courts cannot impute to the legislature any other than public motives by their acts.
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Hogan, J.
It is the settled law by numerous decisions of this court that where the property of an abutting owner is damaged by reason of work of an improvement in a public street, pursuant to lawful authority, a change in the grade of said street does not constitute a taking of property within the meaning of the Constitution, and the abutter is without remedy unless provision therefor is made by statute.
Section 951 of the charter of the city of New York, (L. 1901, ch. 466) the only statute called to our attention, provides in substance:
“ * *
*
there shall be no liability to abutting owners for originally establishing a grade; nor any liability for changing a grade once established by lawful authority,
except
where the owner of the abutting property has subsequently to such establishment of grade built upon or otherwise improved the property in conformity with such established grade, and such grade is changed after such buildings or improvements have been made. * * * ”
The property of plaintiffs was vacant and unimproved; plaintiffs did not own the fee in any part of the bed of Thomson avenue upon which their property abutted; a grade had been lawfully established on Thomson avenue for upwards of twenty years prior to 1907. It follows that if the work complained of by plaintiffs was in fact a change of grade of Thomson avenue and was carried on under express authority of law, a recovery for damages sustained by plaintiffs, other than for the encroachment of the foundation wall of the viaduct, cannot be sustained.
The trial justice found that the determination by the board of estimate and apportionment provided not.only for a discontinuance and closing of certain streets but
for a change of the grades of portions of streets,
and for the discontinuance of Thomson avenue at grade over the width of the freight yard of the railroad companies, and in lieu thereof for the carrying of Thomson avenue over the freight yard by a viaduct,
and for the elevation of the grade of Thomson avenue along the seventy-five feet frontage which plaintiffs’ lands had on said avenue;
that there had been a change of grade of Thomson avenue from a point thereof southwest of plaintiffs’ premises, to a point where the grade of the avenue reached the original grade of the same; that the elevation of grade in front of plaintiffs’ premises was for the purpose of an
approach to the viaduct (which viaduct was to commence at a point one hundred and sixty feet easterly of the southeast corner of plaintiffs’ land).
That the city contemplated, provided for, and actually made a change of grade on Thomson avenue in front of the premises of the plaintiffs is an established fact found by the court in this case. It was that change of grade that physically affected the lands of the plaintiffs. In view of such fact, was the conclusion of the trial justice that the construction of ,the approach in front of plaintiffs’ premises was unlawful, illegal and unauthorized, and not for a public use but an infringement upon the rights of the plaintiffs, justified ?
The conclusions of the trial justice were based upon a construction of certain .provisions of the agreement made between the city of New York and the railroad companies with reference to the work to be performed.
Section 442 of the charter of the city of New York provides:- “The board of estimate and apportionment is authorized and empowered,
whenever and as often as it may deem it for the public interests so to do,
to initiate a change in the map or plan of the city of New York, so as to lay out néw streets, parks, bridges, tunnels and approaches to bridges and tunnels and parks, and to widen, straighten, extend, alter and close existing streets, and to change the grade of existing streets shown upon such map or plan. * * * ”
The findings by the trial .justice disclose that the board of estimate and apportionment, so far as its procedure was concerned, complied with all provisions of the charter of the city of New York.
By the provisions of the charter above quoted, legislative authority was conferred upon the board to determine whether or not the interests of the public would be sub-served by a change of the map and plan of the city of New York, the establishment of new streets and bridges, or a change in the grade of existing streets. The power
of the legislature to delegate that authority to the city and the board cannot be questioned. The exercise of the authority conferred involved a peculiar knowledge of the needs of the public, to be acquired only by minute investigation, coupled with the expression of the people who were invited by public notice, as required by the city charter, to attend the meetings at which the proposed change of plan was to be considered.
Concededly the tracks of the railroad company, six in number, crossed Thomson avenue at grade. It was the intention of the railroad companies to acquire land and construct additional tracks. Important questions were before the board for determination, viz.: Were the six tracks crossing the avenue a menace not only to the safety of the citizens using the highway, hut alike to the public journeying upon trains operated across the same ? Would the presence of additional tracks increase the danger to the public ? Would danger be avoided and the public interests be- advanced by the construction of an overhead crossing in the nature of a viaduct, involving a change of grade in a portion of the avenue, even though such construction and change of grade might prove of benefit to the railroad companies ? The expenses incident to the change, the situation of property in the neighborhood, whether sparsely or thickly populated, the fact that streets proposed to be closed were merely map streets, and many additional considerations, were within the knowledge of the body dealing with the public needs of a great city.
The hoard of estimate and apportionment having determined, after due inquiry and consideration of the question, and having adopted resolutions that the proposed change would subserve the public interests by the discontinuance of certain streets existing only as map streets, change of grade and the construction of the work, having in view the abolition of grade crossings, the presumption is that such conclusion was reached in the exer
cise of a careful judgment, and the question arises, was it within the power of the judicial branch of the government to annul the determination of that legislative body and substitute its. judgment for the conclusions reached by the board empowered to decide the question of public interest.
In
People ex rel. Wood
v.
Draper
(15 N. Y. 532, 545) Chief Judge Denio wrote:
“
There is room for much bad legislation and misgovernment within the pale of the Constitution; but whenever this happens, the remedy which the Constitution provides, by the opportunity for frequent renewals of the legislative bodies, is far more efficacious than any which can be afforded by the judiciary. The courts cannot impute to the legislature any other than public motives by their acts. If a given act of legislation is not forbidden by express words, or by necessary implication, the judges cannot listen to a suggestion that the professed- motives for passing it are not the real ones.” To the same effect are
People ex rel. Kemmler
v.
Durston
(119 N. Y. 569);
Waterloo Woolen Mfg. Co.
v.
Shanahan
(128 N. Y. 345).
In
People ex rel. Kemmler
v.
Durston
(119 N. Y. 569) the relator, who was confined under conviction for murder first degree, sentenced to death, sued out a writ of habeas corpus, alleging he had been sentenced to undergo a cruel and inhuman punishment (death by electricity) contrary to the Constitution. The county judge, before whom the writ was made returnable, over the objection of the attorney-general that the court had no authority to take proof to show that the statute defining the punishment was in conflict with the Constitution, appointed a referee to take such proofs. This court held that the county judge was in error; that it was his duty to remand the relator; that extraneous proof by expert or other witnesses was not admissible to show that the act of the legislature was in conflict with the Constitution. If it could
not be made to appear that the statute was in conflict with the Constitution by argument adduced from the language of the law itself dr from matters which the court could take judicial notice of, then the statute must-stand.
In
Waterloo Woolen Manufacturing Company
v.
Shanahan
the defendant, as superintendent of public works, entered into a contract on behalf of the state with the other defendants for the performance of certain work authorized by chapter 325 of the Laws of 1888 which stated that the money appropriated therein was to be applied to improvements on the Cayuga and Seneca canal toward dredging and excavating the channel of the Seneca river from its intersection with the said canal in the village of Waterloo to the Old Bear Race and thence toward dredging and excavating said race to Washington street in said village so as to admit passage of canal boats therein from said canal. The trial court admitted evidence over objection and found that Bear Race was private property, that the dredging to be done and improvements made were not part of the canal system; that the plaintiffs were entitled to the surplus water running through the canal; that the effect of the legislation was to take plaintiffs’ property for private use and was, therefore, in conflict with the Constitution and directed judgment perpetually restraining the defendants from further prosecution of the work. This court held that while the judiciary had power to determine whether the use to which private property is to be devoted by legislative power is public or private, nevertheless, when the legislature appropriated money for improvements, then the scrutiny which the courts exercise must be confined to matter appearing on the face of the statute itself; that the private or local character of the expenditure did not appear on the face of the bill there under consideration, but from evidence admitted by the trial court against defendants’ objection and exception, the court found as a matter of fact that
the improvement could not benefit the canal but would benefit the property of individuals, and, treating of that question, this court said: “Expenditures may in fact be improvident and the work may prove to be useless to the public, but the legislature, as the depository of the sovereign powers of the people, must necessarily be the judge of the propriety and utility of making it. * * * The judicial department cannot institute an inquiry concerning the motives and purposes of the legislature, in order to attribute to it a design contrary to that clearly expressed or fairly implied in the bill, without disturbing or impairing in some measure the powers and functions assigned by the Constitution to each department of the government. The courts cannot determine, upon the testimony of witnesses, that the purpose of the legislature was to appropriate public money for the benefit of an individual, when it has expressed its purpose in the bill itself to be the enlargement or improvement of the canal. They must assume that the legislature acted in good faith and meant just what it said, although it may be possible to show, outside of the language and terms of the bill, that in fact all, or the larger part, of the benefits following the expenditure may or will be reaped by a few individuals.” (p. 358.)
In Cooley’s Constitutional Limitations (7th edition, page 257) the author says:
“From what examination has been given to this subject, (inquiry into legislative motives) it appears that whether a statute is constitutional or not is always a question of power. * * * In any case in which this question is answered in the affirmative, the courts are not at liberty to inquire into the proper exercise of the power. They must assume that legislative discretion has been properly exercised. If evidence was required, it must be supposed that it was before the legislature when the act was passed; and if any special finding was required to warrant the passage of the particular, act, it would seem that the
passage of the act itself might be held equivalent to such finding. And although it has sometimes been urged at the bar that the courts ought to inquire into the motives of the legislature where fraud and corruption were alleged, and annul their action if the allegation were established, the argument has in no case been acceded to by the judiciary, and they have never allowed the inquiry to be entered upon. ”
The same author at pages 305, 306, says:
“And the same presumption that legislative action has been devised and adopted on adequate information and under the influence of correct motives, will be applied to the discretionary action of municipal bodies, and of the State legislature, and will preclude, in the one case as in the other, all collateral attack.”
It has been held that boards of supervisors are mere local legislative bodies in many respects of limited power, but where they have jurisdiction, they may act for their county precisely as the legislature may act-for the .state.
(People ex rel. Hotchkiss
v.
Board of
Supervisors, 65 N. Y. 222.)
The legislature may also confer power upon common councils of cities to pass municipal ordinances, and such as are passed in pursuance of such authority are as obligatory as if enacted by the legislature itself.
(City of Buffalo
v.
New York, Lake Erie & Western Railroad Company,
152 N. Y. 276.)
This subject is treated in Dillon upon Municipal Oorpotions (5th edition), volume 1, pages 458, 459, where the author, speaking of the power conferred upon municipal corporations, where a discretion in the manner in which the power will be used is conferred, said:
“Thus, where the law or charter confers upon the
city council, or local legislature, power to determine upon the expediency or necessity of measures relating to the local government,
their judgment upon matters thus committed to them, while acting within the scope of their authority,
cannot be controlled by the courts. In such case the decision of the proper corporate body is, in the absence of fraud, final and conclusive, unless they transcend their powers. Thus, for example, if a city has power to
grade streets,
the courts will not inquire into the necessity of the exercise of it, or the refusal to exercise it, nor whether a particular grade adopted, or a particular mode of executing the grade, is judicious. * * * So, also, where, by its charter, a municipal corporation is empowered, if it deem the public welfare or convenience requires it, to
open streets or make public improvements thereon,
its determination, whether wise or unwise, cannot be judicially revised or corrected. ”
Quotations from a number of text book writers upon the subject might be included in support of the principle cited, showing a uniformity of decision, which denies to the judiciary power to review legislative authority conferred upon a municipality and jurisdiction to determine a question reserved to the legislative body, where no attack is made upon the legislative act as being in conflict with the organic law.
While in some cases courts have permitted an inquiry to be made into the motives inducing action by municipal authorities, where they have been in an
administrative character,
still the rule has never been applied so far as I have been able to determine in a case where the municipal authorities act in a legislative character, and, even in cases where the action is taken in an administrative character, as was said by Judge O’Brien in
Talcott
v.
City of Buffalo
(125 N. Y. 280, 288):
“Whatever evils may exist in the government of cities that are due to mistakes, errors of judgment or the lack of intelligent appreciation of official duty, must necessarily be temporary, compared with the mischief and inconvenience which judicial supervision, in all cases, would ultimately produce. ”
Our determination is that the conclusions of law are
not justified by the findings of fact, save in so far as the encroachment of the foundation wall and coping upon the property of plaintiffs was concerned, for which an allowance was made to plaintiffs in the sum of one hundred and fifty dollars.
The Appellate Division laid stress upon the additional fact that the city was to part with its title to a certain portion of a street reserving only a perpetual easement in the same. In view of the conclusion we have reached it will be unnecessary to refer to that fact, especially as no finding was made by the Appellate Division, nor was any finding with reference to that fact made by the trial justice.
The judgment should be reversed and a new trial granted, costs to abide event, unless plaintiffs stipulate to reduce the judgment to the sum of one hundred and fifty dollars and interest from the date of the encroachment as found by the trial justice, together with costs of Trial Term and Appellate Division; in which event the judgment as thus reduced is affirmed, without costs to either party in this court.