Roosevelt v. Godard

52 Barb. 533, 1868 N.Y. App. Div. LEXIS 109

• Court: New York Supreme Court
• Decided: November 2, 1868
• Status: Published

Opinion

By the Court, Daniels, J.

The plaintiffs have brought this action for the purpose of restraining such of the defendants as include the captain of the port and the harbor masters of the city of Hew York from carrying into execution the provisions of certain acts of the legislature which are substantially set forth in the complaint. These acts were passed on the twenty-second of May, 1862, and the twenty-third off May, 1867. (Laws of 1862, p. 979, §§ 3, 4, and of 1867, p. 2382.) By the first of these acts it was provided that the captain of the port should set apart, keep and reserve all that part of the water adjacent to the wharves in the city of Hew York, from the east side of pier number two, to the east side of pier number nine, from the. twentieth of March to the first of January in each year, for the exclusive use and accommodation of canal boats, and barges engaged in the business of transporting property on the Hudson river, or coming to tide water from the state canals, or from Albany, or any place north or west of Albany. And between those periods in each year, all other vessels were prohibited from entering or using such waters, without the written consent of the captain of the port, and in that case only between the first day of January and the twentieth of March, under a penalty of $100 for each day that such vessel should remain there after being notified to leave by one of the harbor masters or the captain of the port.

The act of 1867 extended the previous operation of, the act of 1862, to the west side of pier number ten, and repeated the appropriation of the waters included within the extended limits to the boats and barges mentioned in the previous act, and the lighters engaged in loading or unloading them. This act of 1867 provides that the waters of the harbor included within the described limits shall be set apart, kept and reserved for the exclusive use and accommodation of such canal boats, barges and lighters between the twentieth of March and the last day of December in each year. And it renders it the duty of the captain of the port, and the harbor masters of the city and of all officers empowered by any law, or by an ordinance of the city, to regulate or station ships and vessels in the harbor, to prohibit and prevent all other boats, ships or vessels from entering any of the slips, or approaching or lying at any df the wharves between such piers, when the slips, or the wharves connected with them, shall be required for the use and accommodation of such canal boats and barges. And whenever any portion of the waters of the harbor between such piers shall be occupied by any ship or vessel not entitled to occupy them under the provisions, of the acts, and the proprietor or proprietors, or person in charge of any canal boat or barge, shall desire to use the berth or slip so occupied, it is made the duty of the captain of the port and of the harbor master of the city in charge of the district, upon the request of such person or persons, forthwith to remove the ship or vessel so far as may be necessary to accommodate the canal boat or barge for whose convenience the application may be made. And for every failure to perform that duty, the captain of the port, or harbor master of the district, who may be required to perform it, is rendered liable to a penalty of $50.

The plaintiffs, in their complaint, allege that they are the owners of certain wharves within the district included in the acts. And that they'are informed and believe, and are apprehensive, that these provisions of these acts are about to carried into effect by the officers upon whom that duty has been imposed, and who are made defendants in the present action. It is also alleged that the gains and emoluments arising from the appropriation of the wharves and adjacent slips to the business and use of other ships and vessels are much greater than the laws allow to be collected from canal boats and barges. And that the enforcement of these laws will deprive the plaintiffs of such profits and emoluments, and materially reduce the value of their property. As no compensation is provided for the loss they allege will be occasioned to them by the enforcement of the acts, the plaintiffs claim that they are unconstitutional. They also insist that these provisions are within the prohibition that no person shall be deprived of his property without due process of law.

To determine whether these provisions are in conflict with the prohibitions of the constitution, is a difficult and delicate duty, as it usually is to determine controversies of this character. For the purpose of determining this, it is not necessary to bestow any time upon the consideration of the provision contained in the act of-1867, which allows the owners of any regular line of canal boats or barges to erect derricks upon the wharves for loading and unloading such boats. For no power to erect derricks is given to the officers who are made defendants in "this action, or to any other persons than the proprietors of some regular line of canal boats or barges. These derricks, it is true, are to be erected, if they are erected at all, under such regulations as are to be adopted and prescribed by the captain of the port. But as it is not alleged that any such regulations are at present either made or contemplated, or that either of the parties to this action at any time intends to erect any ' derrick under this act, the simple power to do it would not disclose a sufficient ground for the issuing of an injunction to restrain its exercise. It is only when the rights of the parties are about to be, or are in danger of being irreparably injured by the execution of an unwarranted or unlawful assumption and use of power, that this court can properly interfere to restrain and prevent it. And such a case is not made or presented under this provision of the act. The only question involved in this case, therefore, is whether the provisions of the acts, as they have .been previously considered, are obnoxious to the objection that they are in conflict with, the constitution. And for the purpose of properly determining it, the effect of these provisions must be carefully and clearly ascertained.

But before proceeding to do that, it will facilitate the investigation to refer to certain well settled rules of construction which are particularly applicable to this subject. Under these rules it is to be presumed that the acts in controversy were not passed without mature reflection and full consideration of the provisions contained in them, and of the well settled constitutional principles relating to them. They are not only to be presumed to be constitutional, but that the authority of the court to declare them void will only be resorted to in a clear case of conflict. (Boston v. Cummins, 16 Geo. Rep. 102. Norwich v. County Comr’s, 13 Pick. 60. Charles River Bridge v. Warren Bridge, 7 id. 416.) Washington, J. says:. “It is but a decent respect due to the wisdom, the integrity and the patriotism of the legislative body by which any law is passed, to presume in favor of its validity, until its violation of the constitution-is proved beyond all reasonable doubt.” (Ogden v. Saunders, 12 Wheat. 270,) And when the constitutional validity is in controversy and the law itself may be ambiguous in its import, that construction must be given to it which will sustain its validity, rather than the one which will render it inoperative and void. Under these principles, the first thing to be accomplished is to determine what is the actual effect of the statutory provisions involved in this case.

The statute of 1862, is manifestly much more stringent in its provisions than that of 1867. For it required that part of the harbor specifically mentioned in it to be exclusively appropriated for the use of the canal boats and barges designated from the 20th of March to the 1st of January, in each year. And other ships and vessels were not during that period of the year to be permitted to enter or make use of the waters appropriated for that purpose. For they could according to this act, only enter and use that part of the harbor under the written permission of the captain of the port; and he was allowed to^give that, only for the period intervening between the 1st of January and the 20th of March.

But although the act of 1867, makes use of some general terms equally exclusive, it was evidently not intended to be as much so in this respect, as the act of 1862. For while it provides that this portion of the harbor shall be set apart, kept and reserved for the exclusive use and accommodation of the canal boats and barges, and renders it the duty of- the captain of the port and the harbor masters, to prohibit and prevent all other boats, ships or vessels from entering it, or approaching or lying at the wharves between the piers mentioned, this is only to be done when the slips or wharves connected with them, shall be required for the-use and accommodation of the canal boats and barges. This is a qualifying clause of a general and extended nature, as broad and comprehensive as the previous provisions of the law. And it must, therefore, have been intended to restrict .the exclusive appropriation of this portion of the harbor, to the time only, during which it should be required for the accomodation of the canal boats and barges entitled to use it under the provisions adopted. This intention is rendered more manifest by what is afterwards found to follow, regarding the duties of the officers to move other ships and vessels found in this part of the harbor. For while that is required to be done at the request of the proprietor, or proprietors, or persons in charge of the canal boat or barge, and the officer is thereupon forthwith to remove such ship or vessel, the removal is to be made so far only as may be necessary to accommodate the canal boat or barge.

These provisions of the law are all required to be considered in ascertaining and determining its meaning. And appropriate effect must be given to them according to the import of the language made use of, so far as that can he consistently done in view of the terms previously employed. By construing those terms in their general and unresticted sense, all ships and vessels, except canal boats and barges, and the lighters loading or unloading them, would necessarily be excluded from this portion of the harbor, at all times during the period intervening between the 20th of March and the last day of December, whether the canal boats, barges and lighters used it or not, which certainly would be, as it was in the act of 1862, a most unjust as well as unreasonable restriction in the use of this property, and one that should not without the most cogent reason for it, be attributed to the power that enacted the statute of 1867. bio such reasons exist in this instance. For such a construction of the act would be directly opposed to the other provisions subsequently contained in it. By adopting it, those provisions would be rendered nugatory and of no effect whatsoever, which declare that the other ships and vessels are to be prohibited and prevented from approaching or lying at the wharves between those piers, when such slips and wharves shall be required for the use and accommodation of canal boats and barges, and that the officers, for their accommodation, shall, upon the request of their proprietors, or the persons in charge of them, remove the ships and vessels that may be occupying this part of the harbor, so far as such removal may be necessary for that purpose.

These provisions of the law fairly imply that other ships and vessels may make use of this part of the harbor, when it shall not be required for canal boats and barges. For the only interference that it allows in this respect is expressly made dependent upon the circumstance, that for the time, the harbor shall be required for the use of canal boats and barges. When it is required, other ships and vessels are to be prohibited and prevented from entering, and if they are already there, then they are to be removed, not from this part of the harbor entirely, but only so far as may be necessary for the use and accommodation of the canal boat or barge, on whose account the removal may be made. The statute, by providing that the other ships and vessels shall be prohibited and prevented from entering when this portion of the harbor may be required for the canal boats and barges, and that they shall be removed when occupying it, so far as the accommodation of the canal boats and barges may render that necessary, and by omitting to provide for any interference with other ships and vessels in this respect under any other circumstances, by a well settled rule of construction, excludes the exercise of any such authority over them. The officers are authorized to interfere in these two instances, and as no others are enumerated, it necessarily follows that all others were intended to be excluded.

In construing laws, it is the duty of courts to render all parts of them efficient and operative wherever that can reasonably be accomplished. And it can only be done in this instance by giving the construction already mentioned to the act in controversy.

By giving it this construction, it will sanction no such exclusive appropriation of this part of the harbor, as will necessarily exclude all other ships and vessels from making use of it. But while it will, as it was the apparent intention of the legislature that it should, secure to canal boats and barges, and the lighters employed by them, a paramount right or preference to the use and occupancy of this part of the harbor, it will only exclude other ships and vessels from it, during the time that it may be required for that purpose, and will only sanction their removal when the positions occupied by them may be necessary for the accommodation of some canal boat or barge. When the necessity for such a removal arises, the law declares that it shall be made forthwith. And if this term is to have its full popular signification as it is here used, it would require that to be done instanter. But as laws are always to be construed reasonably, having reference to the subject to which they may relate, that could hardly have been the intention which the legislature intended to convey by the use of this term. Such a construction would sanction acts of harshness and injustice, which it could not have been the design of the legislature to countenance or permit. And if it was not, then all that could, have been intended by the use of this term in this instance, was that the removal should be expeditiously and diligently made, without unnecessarily injuring, disturbing or deranging the business in which the ship or vessel to be removed was for the time being engaged. In other words, it could not have been the design in using this term, that a ship or vessel should at once be removed from its berth, when it should be found to be diligently and necessarily engaged in receiving or delivering its cargo. For, as such a removal would be both unjust and oppressive, the intention to effect it by the instrumentality of the law cannot with any thing like legal propriety, be attributed to the authority that enacted it.

This statute relates to the same subject matter which was included within the act' of 1862. And in these respects it has provided different rules and regulations for the government of that subject. They are less restricted than those prescribed by the act of 1862. In that respect it is entirely inconsistent with that act, and so far must necessarily work its repeal by way of implication. The conflict between them is so direct and decided that they cannot be maintained and enforced together. It is impossible to appropriate this part of the harbor to the exclusive use of canal boats and barges, as declared by the act of 1852, and still permit it to be used by other ships and vessels, when neither used nor needed by the former, as it' is clearly implied that it may be by the act of 1867. And for that reason the later act must be deemed to have removed the absolute restriction imposed by the former one.

By giving the effect already indicated to the act of 1867, it constitutes a mere police regulation of the business of the harbor, which can neither be regarded as unjust or unreasonable. Legislation of this nature does not deprive the owners of the wharves to which it relates of any of their rights or privileges. It merely regulates the manner in which they are to be used and enjoyed for the purpose of promoting the business, security and good order of the harbor. It does not deprive the owner of his property, nor subject it to new uses, neither does it prevent him from devoting it to the lawful uses and purposes for which it has" been adapted and designed. But it merely prescribes the manner in which those uses and purposes are to be subserved by it. And when that is all that maybe accomplished by the law, it cannot be properly maintained that the owner has been in any essential respect either deprived of his property, or of the beneficial use or enjoyment of it. The uses to which property of this description are applied, though for the private gain of the owner, are public in their nature, and as such peculiarly subject to the regulations prescribed for them by the legislature.

The profitable use of it may in this manner be to some extent incidentally impaired, but that of itself is not sufficient to justify courts of justice in declaring that the law, through whose instrumentality that result may be produced, is void by reason of its conflict with the constitution. That instrument contains no provision which was calculated to restrain and prevent legislation of this nature, where it is not extended so far as either to deprive the owner of' his property or of some essential beneficial use or enjoyment of it. And as the acts in controversy have been construed, they can in no just sense be regarded as productive of any such result. In this respect they are no more prejudicial to the proprietary rights and privileges of the plaintiffs, than other similar laws which have been heretofore enacted and maintained.

In discussing the right of the legislature to enact laws of this nature in the case of The Commonwealth v. Alger, (7 Cush. 53,) Shaw, Ch. J. used the following language: “ All property in this commonwealth, as well that in the interior as that bordering on tide water, is derived directly or indirectly from the government and held subject to those regulations which are necessary to the common good and general welfare. Bights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment as shall prevent them from being injurious, and to such reasonable restraints and regulations established by law, as the legislature under the governing and controlling power vested in them by the constitution, may think necessary and expedient.” The cases of Seward v. Beach, (29 Barb. 239;) Smith v. Turner, 7 How. U. S. 283, 406 ;) Com. v. Tewksbury, (11 Metc. 55;) Mayor, &c. v. Lord, (17 Wend. 285, 290;) Russell v. Mayor of New York, (2 Denio, 461, 478, 479;) Sorocco v. Gray, (3 Cal. 69 ;) Kean v. Rice, (12 Sergt. & R. 203;) Smith v. Levinus, (4 Seld. 472;) will furnish illustrations of the use of this authority. Upon the particular subject of ■ these harbor regulations, Woodworth, J. in deciding the case of Vanderbilt v. Adams, (7 Cowen, 348,) remarked as follows: “It seems to me that the power exercised in this case is essentially necessary for the purpose of protecting the rights of all concerned. It is not, in the legitimate sense of the term, a violation of any right, but the exercise of a power indispensably necessary where an extensive commerce is carried on. If the harbor is crowded with vessels arriving daily from various ports, the power is incident to such a state of things. Disorder and confusion would be the consequence if there was no control.” “Police regulations are legal and binding because for the general benefit, and do not proceed to the length of impairing any right m the proper sense of that term.” (Id. 351.) And Chief Justice Taney, in delivering the opinion of the Supreme Court of the United States in the case, of The James Gray v. The John Fraser, (21 How. 187,) assumed the existence of this power in still broader terms, He said that: “ Begulations of this kind are necessary and indispensable in every commercial port for the convenience and safety of commerce. And the local authorities have a right to prescribe at what wharf a vessel may lie, and how long she may remain there, when she may unload or take on board particular cargoes, where she may anchor in the harbor, and for what time, and what description of light she shall display at night, to warn the passing vessels of her position, and that she is at anchor and not under sail. They are like to the local usages of navigation in different ports, and every vessel, from whatever part of the world she may come, is bound to take notice of them and conform to them.” These principles are sufficiently broad and comprehensive to include and maintain the laws involved in controversy in this case, as those laws .have been defined and construed. The order of the special term overruling the demurrer should therefore be reversed. And judgment should be directed for the defendants with costs, with the usual leave to the plaintiffs to amend in twenty days, in case they shall elect to avail themselves of that privilege.

[New York General Term, November 2, 1868.

Peeltlmn, Daniels and Mallín, Justices.]