and 146 New York State Reporter "hereafter built," in order to be a lawful structure, must be a swing or draw bridge built by authority of the common council, yet that enactment must be construed with reference to the demands of the river for navigation purposes. It was legislation upon the subject of making Buffalo river navigable for lake-going craft by deepening and widening the river. The authority claimed by the plaintiff to put and maintain the river in navigable condition is derived from the revised charter of 1870 (Laws 1870, p. 1205, c. 519, § 16), tit. 9, while section 15 of the same title, by amendment in 1884, is the authority relative to swing or draw bridges. It is apparent that the only necessity for swing or draw bridges is to permit navigation, and the legislative scheme to put and maintain the river in a navigable condition is to deepen and widen the channel by dredging and by removing obstructions in the shape of fixed bridges, by replacing them when rebuilt with swing or draw bridges. This scheme must be considered as a whole, and when the program of making the river navigable by actual dredging, deepening, and widening has reached such a stage that a clear channel unobstructed by bridges is needed for the progress of the work and navigation, and a "bridge hereafter built" is to take the place of a bridge existing in 1884, it must be of a swing or draw type. The claim that this section of the charter of plaintiff is unconstitutional, because it deprives defendants of a valuable property right without due process of law, is founded upon the fallacy that defendants under their franchise have a vested right to forever keep and maintain a fixed bridge at the point in question; that, the Legislature having in 1884 declared that the fixed bridge then existing was a lawful structure, all fixed bridges thereafter built at that river crossing must likewise be lawful structures. It may be true that the defendants have a vested right to keep and maintain the bridge of 1884 as a fixed bridge as long as they care to, and any interference with that right by the Legislature might be prohibited by the Constitution; but the defendants are going to in fact abandon the bridge of 1884, and the bridge referred to by the Legislature in fact goes out of existence. The defendants' franchise right to cross the river is not interfered with in the slightest degree. Simply the manner of crossing is regulated, and then only when the defendants completely remove all of the structure that has been declared to be lawful; and the manner of crossing is regulated only to the extent of saying that the defendants must so cross as not to interfere with navigation. The bridge which the defendants contemplate erecting over Buffalo river will not be an obstruction to any navigation of a practical character for at least two years. When the work of deepening the channel to a sufficient depth to permit navigation therein by lake-going craft and for a distance of about two miles from the south line of lot 65 up the stream shall have been completed, then, and not till then, will a fixed bridge in any manner obstruct navigation. Before there can be any justification for compelling the defendants to incur the large expense of installing a swing or draw bridge for their traffic across Buffalo river, there must be a condition showing a reasonable, practical necessity therefor. While it may be said that the present plans of river improvement demonstrate that in the execution of these plans a swing or draw bridge will be essential at the place of the present crossing, yet actual excavations and dredging for the purposes of navigation at this point will not occur for a long time. Plans have been adopted placing the excavated channel at points under the defendants' railroad where a swing or draw bridge at the location of the present bridge would be utterly useless. Modifications of such plans place the proposed channel under defendants' present bridge, and the placing of a new fixed bridge at this point would prohibit the execution of these plans. Defendants cannot be permitted to erect an entirely new bridge, saving only a few courses of stone of substructure, at this time, simply calling it a renewal of a part of their bridge as it existed in 1884, and thus defeat the city in its right to compel the erection of a swing or draw bridge when river improvement and navigation demand it. The city's right to thus regulate the manner in which the defendants may exercise their right of franchise to cross Buffalo river is paramount and superior to any right the defendants have to cross the river. The present bridge of defendants, while it existed in 1884, at the time the statute was passed declaring it a lawful structure, will no longer exist when the defendants have done the things they proved on the trial they were going to do. The proof is that the foundations, the abutments, and pier are in a greatly damaged condition, cracks existing perpendicularly through courses of stone necessitating rebuilding; that defendants intend removing the entire superstructure, several courses of stone of substructure, make a larger, higher, heavier, more substantial structure, utilizing a few courses of stone of the present abutments and pier, practically making a new foundation, and placing thereon an entirely new girder bridge of modern type. If this is not a new bridge and a new foundation, it is difficult to define one. If it is not a "bridge hereafter built," in the language of the statute, the use of one single foundation stone of the old substructure would defeat the right of the city to compel a swing or draw bridge to be erected at any time in the future. The only vested right the defendants have by their franchise and this statute is to cross Buffalo river, a public highway, and use in such crossing the bridge that existed in 1884. When that bridge by reason of any fact goes out of existence, the enforcement of the undoubted prerogative of the city to say that a bridge built to take its place must be of a swing or draw type, when the progress of the work of river improvement and navigation demand it, in no manner infringes upon or imperils defendants' franchise or any of their vested rights. The only reason why the defendants obtained a franchise permitting it to cross the Buffalo river was that they intended to use such crossing for a public purpose. To allow them to erect a new permanent fixed bridge would permit the exclusion by them of the public from the river for navigation purposes. The purpose of navigating the river is quite as important as the public purpose claimed to be exercised by the defendants in crossing the river. When the defend and 146 New York State Reporter ants propose to abandon and do away with the bridge that existed in 1884, the Legislature has undoubted power to do whatever is necessary and proper for the public welfare in the control and regulation. of the way and manner in which a new bridge is to be built for the use of the defendants in crossing the river under their franchise. That power has been expressed, so as to provide that, when river improvement work and navigation require it, such crossing of that river by a public highway must be by swing or draw bridge; and the defendants have no legal right to erect any other kind for permanent use. The plaintiff, through its common council and commissioner of public works, has notified defendants that all bridges hereafter constructed across the Buffalo river shall be draw or lift bridges. Section 9, c. 527, p. 1442, of the Laws of 1906, provides that all railroad bridges rebuilt over the proposed new or improved channel of the Buffalo river shall be such bridges as may be determined upon by the common council; that such bridges shall be built at the expense of the railroads. The validity of this statute is attacked by the defendants upon the ground that it is unconstitutional; that it is the taking of property without due process of law. The fact that defendants are compelled to build their own bridges at their own expense in no way infringes upon their constitutional rights. The defendants assert that the exigencies of their business compel them to build a new bridge. The statute in no manner compels the defendants to rebuild this bridge. The plaintiff is not seeking to compel defendants to build a bridge. The simple fact is that defendants have decided and determined, independently of the statute, that they will build a new fixed bridge, and are threatening so to do, and the plaintiff seeks simply to prevent the building of a bridge that will prohibit navigation. The reasonable regulation by plaintiff by any means within its power of the manner in which defendants shall construct their new bridge does not infringe upon any constitutional rights of defendants, even if it does compel them to pay the expense of complying with such regulations. So far as chapter 527, p. 1439, of the Laws of 1906, applies to the issues. raised in this action it is a valid enactment. The defendants claim the right to erect a new girder fixed bridge in place of the one now in use, and that such structure, when completed, will secure to the defendants the same right to maintain and operate it as a fixed bridge that they have had concerning the present bridge since 1884. The defendants are about to erect such a bridge, and, such act being without right or authority, they will be restrained from so doing by the decree to be entered hereon. The rights of the parties do not demand the immediate execution of such decree. To immediately restrain defendants from building a fixed bridge means that a temporary fixed bridge could not be built, and that nothing but a swing or draw bridge would be a lawful structure. To manufacture a swing or draw bridge suitable for the excavated channel and install it in operation would take months, if not years, of time. The defendants' present bridge has been condemned by the Public Service. Commission. It is unsafe for further use. It is in defective condition. It is far too light for defendants' traffic. The defendants must provide some temporary means of crossing the river, and they cannot comply at once with such a decree. The defendants have upon the ground a new girder bridge that can be assembled and put in place of the present bridge, upon foundations to be rebuilt, in a comparatively short time. Such temporary use of the material at hand will be without detriment to its use in some other structure in the future. A swing or draw bridge will not actually be needed within two years. Actual dredging will not begin at the location of the bridge before that time, and practical navigation will not be possible for a long time. In view of these facts I am disposed to suspend the operation of the restraining and injunctive features of the judgment to be entered hereon for 18 months. If at the expiration of that time it should appear that the necessities of river improvement work and navigation do not demand a swing or draw bridge, application may be made to this court on the foot of this judgment for such further suspension of the restraining and injunctive provisions of the judgment as the court at that time may grant. Judgment accordingly ordered in favor of the plaintiff against the defendants, with costs. PEOPLE ex rel. MCNEILE v. GLYNN, State Comptroller. (Supreme Court, Appellate Division, Second Department. October 22, 1908.) 1. STATUTES (§ 181*)-CONSTRUCTION-INTENTION OF LEGISLATURE. In construing statutes, the intention of the Legislature must be sought and given effect. [Ed. Note. For other cases, see Statutes, Dec. Dig. § 181.*] 2. STATUTES (§ 188*)-CONSTRUCTION-MEANING OF LANGUAGE. In construing statutes, the legislative intention is to be determined from the language used, by giving such language its usual and accepted meaning. [Ed. Note. For other cases, see Statutes, Cent. Dig. § 266; Dec. Dig. § 188.*] 3. TAXATION (§ 895*)-INHERITANCE AND TRANSFER TAXES-APPRAISEMENT—APPOINTMENT AND REMOVAL OF APPRAISER. Tax Law (Laws 1896, p. 874, c. 908) § 230, as amended by Laws 1900, p. 1438, c. 658, § 1, provided for transfer tax appraisers to be appointed by the comptroller of New York City, etc., and exempted the counties of Kings and others from the general law by providing that in such counties the State Comptroller shall appoint and may remove at pleasure two appraisers in each county; and Laws 1901, p. 380, c. 173, extended the same provision to other counties, and the tax laws were subsequently amended by Laws 1905, p. 827, c. 368, and Laws 1906, p. 1495, c. 567, but section 230 was not changed thereby. Laws 1888, p. 162, c. 119, prohibited the removal of an honorably discharged soldier, sailor, etc., who was not appointed for a definite term, from any appointive position in any city, except for cause and after hearing, and by Laws 1892, p. 1117, c. 577, this statute was extended to persons who had been members of a voluntary fire department at the time of its disbandment; and Civil Service Law (Laws 1899, p. 809, c. 370) § 21, substantially re-enacted, chapter 119 as amended by chapter 577, both chapters being expressly repealed, and the civil service law was subsequently amended by Laws 1902, p. 804, c. 270, and Laws 1904, p. 1694, c. 697, the provisions of section 21 not being changed. Relator, who was a member of a voluntary fire department unFor other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes and 146 New York State Reporter til its disbandment in October, 1905, had been appointed in May, 1905, a transfer tax appraiser in Kings county, and was removed in 1907, without hearing or cause shown. Held, that Laws 1900, p. 1438, c. 658,' authorized his removal by the State Comptroller without hearing or cause shown, notwithstanding section 21 of the civil service law, and such removal was absolute, and not reviewable by the courts. [Ed. Note. For other cases, see Taxation, Dec. Dig. § 895.*] Appeal from Trial Term, Kings County. Mandamus by the people of the state of New York, on the relation of Hector McNeile, against Martin H. Glynn, as Comptroller of the state of New York, to compel defendant to reinstate relator as a state transfer tax appraiser. From a judgment denying a motion for a peremptory writ, relator appeals. Affirmed. Argued before JENKS, HOOKER, GAYNOR, RICH, and MILLER, JJ. John J. McGinniss, for appellant. RICH, J. The relator was a state transfer tax appraiser in the county of Kings, appointed by the State Comptroller in May, 1905, and removed by the respondent on January 17, 1907. There were no charges of incompetency or misconduct against him, and his removal. was without a hearing. He was a member in good standing of Richmond Hook & Ladder Company No. 4, of New Brighton, at the time. of its disbandment, October 1, 1905, and founds his contention on the provisions of section 21 of the civil service law (Laws 1899, p. 809, c. 370), which, so far as it affects his rights, provides: "Every person whose rights may be in any way prejudiced contrary to any of the provisions of this section shall be entitled to a writ of mandamus to remedy the wrong. No person holding a position by appointment or employment in the state of New York or in the several cities, counties, towns or villages thereof, who shall have been a member thereof at the time of the disbandment of such volunteer fire department, shall be removed from such position or employment, except for incompetency or misconduct shown after a hearing, upon due notice, upon stated charges," etc., * -under which he claims that his removal was wrongful and unjustifiable. The respondent relies upon the provisions of section 230 of the tax law as amended by section 1, c. 658, p. 1438, of the Laws of 1900, under the provisions of which the relator was appointed and removed, which provides: "The State Comptroller shall appoint and may at pleasure remove, not to exceed * * * two persons in the county of Kings to act as ap praisers therein," -under which it is claimed that the action of the Comptroller in removing the relator was authorized and legal, notwithstanding the provisions of the civil service law. The question presented is: Which of these statutes controls the removal of a transfer tax appraiser in the county of Kings? The learned Special Term held that the respondent had the right under the laws of this state to remove the relator without charges involving his inFor other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |