#### William A. Sweet, App’lt and Resp’t, *v.*The City of Syracuse *et al.,*Resp’ts and App'lts.1

*(Court of Appeals,*

*Filed June 25, 1891.)*

1. Constitutional law—Laws 1889, chap. 291, § 18, as amended 1890, chap. 314.

The prohibition of § 11 of article 8 of the New York constitution limiting the power of cities of over 100,000 inhabitants to contract debts and issue money obligations, does not apply to the Laws of 1889, chap. 291, as amended, which authorized the taking by the city of Syracuse of water “not required for the canal,” and the issuing of bonds to meet the expense thereof.

2. Same—Title op act.

Neither does said law offend against § 16 of article 3 of the constitution. Under the title ' ‘ an act to establish and maintain a water department in and for the city of Syracuse,” the legislature could properly insert, not only every provision necessary for the organization of such a department as an official body, but also provisions conferring power upon that body to supply the city and inhabitants with water.

3. Same.

Nor is § 18 of said act as amended in 1890, which allows the water board to take water from Skaneateles lake, in conflict with § 6 of article 7 of the constitution, which provides that the legislature shall not sell, lease or otherwise dispose of the Erie and certain other canals.

4. Same—Canal—Use of water op feeder by city.

A statute permitting a city to draw for its own use from a lake used for feeding the canal, water which the state does not need for the use of the canal, is not inconsistent with the integrity of the canal system, as a highway of commerce, nor is it in conflict with the constitution.

5. Same—No property in flowing water.

This is not an appropriation of public property to a local purpose, so as to be invalid by reason of the absence of the requisite two-third assent of the legislature under § 9 of art. 1 of the constitution. The state has no property in the flowing water of the lake, although it did acquire the right to divert and use it in such quantities as was necessary for the use and operation of the canal.

Appeal from judgment of the supreme court, general term, fourth department, denying motion for, new trial and ordering judgment for defendant on the verdict.

*Charles H. Peck,*for pl’ff; *C. L.*Stone, for def’ts.

1

 Reversing 38 N. Y. State Rep., 607.

O’Brien, J.

The plaintiff, a taxpayer of the city of Syracuse, brought this action, under the provisions of § 1925 of the Code of Civil Procedure as supplemented by chap. 531 of the Laws of 1881 and chap. 673 of the Laws of 1887, against the city, the mayor thereof, the members of the common council and the water board to perpetually restrain them from carrying into effect or exercising any of the powers conferred by chap. 291 of the Laws of 1889, entitled “ An act to establish and maintain a water department in and for the city of Syracuse,” as amended by chap. 314 of the Laws of 1890. It is alleged that the defendants are without power to perform the various acts and functions specified in this statute for the reason that it is in conflict with certain provisions of the state constitution, and also that it was not legally *934enacted, not having received the assent of two-thirds of the members of both houses of the legislature; and that the execution thereof by the defendants would involve a culpable waste of the municipal funds and property. The special term held that the act was valid and dismissed the complaint. The general term held that § 18 was invalid and modified the judgment accordingly, which has all the effect substantially of a reversal and a decision in favor of the contention of the plaintiff. Both parties appeal from the judgment as thus modified, the plaintiff because the judgment of the trial court was not wholly reversed, and the defendants because it was, in any. respect, modified. The act authorized the mayor to appoint a board of water commissioners to constitute the water board. This board was authorized for and in the name of the city to acquire, construct, maintain, control and operate a system of water works to furnish the city and its inhabitants with water from Skaneateles lake, and to acquire all lands, waters and other property necessary for this purpose.

The power to exercise the right of eminent domain was conferred, and the procedure provided for. For the purpose of defraying the expenses of the work, power was given to issue and sell the bonds of the city, whenever the board considered it necessary, to an amount not exceeding $3,000,000,' all payable July 1, 1920, with interest payable semi-annually, but no sinking fund was provided for. The eighteenth section, as amended in 1890, and which was pronounced invalid, authorized the board, under the conditions and restrictions thereinafter mentioned, to take and conduct water not required for the Brie canal from Skaneateles lake to the city, through a pipe or main not exceeding thirty inches in diameter, for the purpose of supplying the city and its inhabitants with water. But before taking any water from this source, the board was required, at the cost and expense of the city, to increase the storage capacity of the lake sufficiently to store therein all the ordinary flow of its water shed; the fact of such reconstruction for increased storage of the water to be certified by the state engineer and the superintendent of public works, and filed in the office of the last-named official. The plans and specifications for all this work were to be prepared or approved by the state engineer, and all the work executed under the direction, supervision and control of the state superintendent of public works, under whose exclusive charge and control the dam, and all structures connected therewith, together with the regulation at all times of the flow of water from the lake into the pipe were to remain ; all necessary repairs to be made under his direction at the expense of the city. He was authorized and required if, for any reason, the flow of water into the pipe, impaired the necessary and sufficient supply for the use of the Brie canal, to stop such flow, in whole or in part, whenever, in his judgment, it was necessary in. order to secure a full supply for the canal. The rights of the city in and to the use of the surplus waters of the lake conferred by the act, were expressly declared to be, at all times, subject to the superior claims of the state thereto, and power was given to the state engineer to prescribe the plan of construction of the gate *935house, or other means, for delivering the water of the lake into the pipe. It was further provided that the city should, at all times, protect and save the state harmless from and against all claims and demands of riparian owners, upon the lake and outlet, for loss or damage occasioned by any act or structure authorized by the statute, and that before any water was taken from the lake the city should acquire or extinguish all water power rights upon the outlet to be affected by the proposed storage of water, and, subject to these restrictions, general power was given to the board to perform all acts and acquire all property necessary or proper to enable the city to store and obtain water from the lake. It appears from the findings that Skaneateles lake is a body of water distant about seventeen miles from Syracuse. Its length is about fifteen miles, and its general width about one mile, with a surface area of about thirteen square miles and a water shed, including the surface, of seventy-three and one-fourth square miles. It is about 453 feet above the Jordan level of the Erie canal, and discharges its water through an outlet known as Skaneateles creek, about ten miles long, into the Seneca river, thence into the Oswego river and into Lake Ontario. The lake has been for many years navigated by steamboats and other crafts, but there is no navigable communication between it and any other waters.

The controversy between the parties requires this court to pass upon the validity of an act of the legislature. The principles governing such an inquiry were well stated by Huger, Ch. J., in *The People*v. Angle, 109 N. *Y.,*567; 16 N. Y. State Rep., 647 : *“*Within settled rules it requires a case to be made showing clearly that the statute, when fairly and reasonably construed, is brought into conflict with some provision of the constitution before the court can be justified in pronouncing it an unauthorized expression of the legislative will. If the act and the constitution can be so construed as to enable both to stand, and each can be given a legitimate office to perform, it is the duty of the court to give them such construction; but if this cannot be done, it is equally our duty to declare the supremacy of the constitutional provision and the nullity of the statute. While every presumption is in favor of the constitutionality of the law, if, nevertheless, it appears that its enforcement must necessarily produce a conflict with the letter or spirit of the constitution, it is the duty of the court to condemn the law.”

The bonds of the city which this statute authorized the board to issue had more than twenty years to run, and, as already observed, no sinking fund was provided for. The plaintiff contends that, for this reason, the act violates § 11 of art. 8 of the constitution, which limits the power of certain cities to contract debts and issue money obligations. This section does forbid the creation of any debt by any city except for city purposes, and this is the only restriction which the constitution imposes upon the power of the legislature to authorize cities not containing a population of over 100,000 inhabitants to incur indebtedness. Ho city can give any money or property, or loan its money or credit to or in aid of any individual or corporation, *936or become the owner of stock in or bonds of such corporation. These prohibitions are general and applicable to all cities alike, without regard to population. A further restriction upon the-power to create debts given for city purposes is also placed upon cities containing over 100,000 inhabitants, which the plaintiff invokes to nullify the statute in question. As it is conceded that Syracuse contains less than 100,000 population, and as it is obvious that the bonds to be issued for a water supply is a city purpose, we are clear that the prohibition does not apply to the statute under consideration.

The first two paragraphs of the section, as it now stands, were adopted in 1874, and they apply to all cities, but exclude from the restrictions upon the power to create debts such obligations as are given for municipal purposes. The remainder of the section was adopted in 1884, and does impose restrictions upon the power to create debts and levy taxes even for city purposes, but these restrictions, as already observed, are limited to cities of more than 100,000 inhabitants, and to counties containing such a city. In giving construction to a provision of the constitution, its history and the conditions and circumstances attending its adoption must be kept in view, and the effect of subsequent amendments are determined by the same rules applicable to the interpretation of statutes. *People*v. *Angle, supra.*

The general policy of the state to restrict the power of cities and villages, in respect to the power of taxation, borrowing money and contracting debts indicated in § 9, article 8 of the constitution as adopted in 1846, and chap. 603 of the Laws of 1853, has found expression, with the exception above referred to, only in acts of the legislature, mostly incorporated into the charters of particular municipalities, and, occasionally, by some act of a more general character, all of which are, of course, subject to modification or repeal. Neither this policy nor the necessity which may be conceded for restraining in this respect the smaller as well as the larger cities would warrant us in declaring an act of the legislalature, authorizing the city of Syracuse to incur a debt of $3,000,-000 for the purpose of a water supply, invalid. Nothing short of a constitutional prohibition would justify such a result, and this we cannot find in the section referred to, either in express words or by fair and reasonable construction.

The act does not offend against § 16 of article 3 of the constitution, which provides* that no local or private bill shall embrace more than one subject, and that shall be expressed in the title. The title of the bill in question is “ An act to establish and maintain a water department in and for the city of Syracuse. ” Under this title the legislature could properly insert, not only every provision necessary for the organization of such a department as an . official body, but also provisions conferring power upon that body to supply the city and the inhabitants with water. It could create the department and, in the same bill, prescribe its powers and duties with such particularity and detail as in its judgment might be deemed necessary, without offending against this clause of the constitution. It is necessary that the title be such as to fairly *937suggest or give clue to the subject; but when that is expressed, all matters fairly and reasonably connected with it and all measures which will or may facilitate its accomplishment are proper to be incorporated in the act and are germane to the title. *Astor*v. *Arcade R. Co.,*113 N. Y. 93, 110; 22 N. Y. State Rep., 1.

None of the provisions of the act are of such a character that it can properly be said that the public, or the members of the legislature, were or could have been deceived by the title in regard to the details. Power to conduct water through pipes from reserviors to be constructed, and to distribute the same to the city and its inhabitants, could fairly be anticipated among the provisions of an act with such a title. The authority conferred upon the board by the statute is, we think, fairly within the scope of the subject as expressed in the title. *City of Rochester*v. *Briggs,*50 N. Y, 553 ; Cooley on Con. Lim., 172 ; *Wrought Iron Bridge Co.*v. *Town of Attica,*119 N. Y, 204 ; 28 N. Y. State Rep., 973 ; *In Matter of Mayor, etc.,*99 N. Y., 569.

The important provisions of the bill are to be found in § 18, as amended in 1890. There it is that the legislature attempted to confer power upon the water board to take water from Skaneateles lake and it is contended, in behalf of the plaintiff, that this section is in conflict with § 6 of article 7 of the constitution, which provides that the legislature shall not sell, lease or other-' wise dispose of the Erie and certain other canals; “but they shall remain the property of the state, and under its management forever.”

In the year 1843 the canal board by the authority of the statutes appropriated the lake for the use of the canal. The resolution of the board, which accomplished this result, is as follows:

> “ *Resolved,*that the waters of the.Skaneateles lake and the outlet of the same, be, and they are hereby, appropriated to the use of the public for a reservoir and feeder to the Erie canal.”

To carry this resolution into effect lands were taken at the foot of the lake which included the dam and water rights at that point. This dam, nine feet high, has ever since been maintained by the state and the flow of water into the outlet is regulated by the use of gates in the dam, which, since the appropriation, have been under the control and management of an employee of the state. About nine miles below, at the village of Jordan, another dam had been constructed across the outlet, by means of which a < portion of the water from the lake is discharged into the canal. An aqueduct constructed under the canal permits the flow of that part of the stream, not used for canal purposes, beneath the canal, through its natural channel, on to the Seneca river, which is but a short distance from this point. Between the lake and the canal numerous mills are situated along the outlet, being supplied with power from the running water, and these are some of the water rights referred to in the statute which the city is bound to purchase or extinguish. During the time, in every years, when the canals are closed, a volume of water has been permitted to flow through the gates of the dam at the foot of the lake for the use of *938the mills along the outlet, except for several periods in different years, when the water was held back in order to increase the storage or for the purpose of repairs. The court below found that the quantity of water thus ordinarily permitted to flow was about 50,000,000 gallons per day, which has never been utilized by the state for canal purposes. The carrying capacity of the thirty-inch pipe, authorized by the act to be laid, is found to be 15,000,000 gallons per day, and that quantity drawn per day would be equivalent in one month to two inches in depth froni the surface of the lake. We think that the permission given by this act to the city of Syracuse to take water from the lake not required. for the use of the Erie canal, is not in conflict with that provision of the constitution which forbids the sale of the canal and secures its ownership and management to the state forever. Applying a fair and reasonable construction to this limitation, the statute is not within either its letter or spirit. The management of the canal must under this.provision devolve upon the legislature and such officers of the state as are charged with duties in that regard by the constitution. This power of management implies discretion in many matters of detail. What the framers of the constitution intended by this provision was that the canal as a highway of communication should not be sold or leased, but remain the "property of the state and forever under its management, in order to promote the commercial prosperity of the people. Within the water shed of the canal, from the Hudson river to the lakes, there had been appropriated to the use of navigation the waters of numerous streams, small lakes and ponds, as feeders and reservoirs for the canals. The use of these waters by riparian owners and even by cities that have grown up upon the line of the canal, for domestic or manufacturing purposes, subject to the paramount rights of the state, is entirely consistent with the public use to which they had been devoted, and this must have been contemplated when the appropriation was made.

A statute, therefore, permitting a city to draw from one of these lakes, for its own use, water which the state does not need, for the use of the canal, is not inconsistent with the integrity of the canal system, as a highway of commerce, nor is it in conflict with the constitution. In regard to all these objections, urged against the validity of the statute, we have no difficulty in agreeing with the reasons and conclusions of the general term. That court, however, found that the statute was invalid under another provision of the constitution. Article 1, § 9, provides that the assent of two-thirds of the members elected to each branch of the legislature shall be requisite to every bill appropriating the public moneys or property for local or private purposes. The trial court found and it is conceded that neither the original act of 1889, nor the amendment of 1890, received the vote of two-thirds of the-members elected to each house. The general term has held that, for this reason, the eighteenth section, as amended in 1890, was never legally enacted.

This brings us to the question whether the bill or any part of it was, in fact, one appropriating public property for local or pri*939vate purposes, within the meaning of this provision of the constitution. There is no doubt that the state, in some sense, has a certain property right in Skaneateles lake and its outlet. Lands, appropriated by the canal authorities for the use of the canal under the statute, are held by the state in fee. *Heacock*v. *State,*105 N. Y., 248; 7 N. Y. State Rep., 353 ; *Mark*v. *State,*97 N. Y, 572; *Rexford*v. *Knight,*11 id., 308. But it was not land, as such, that the state appropriated in this case but water. It becomes important therefore to determine the nature and quality of the right or interest which the state acquired in the waters of the lake and outlet. It is a principle recognized in the jurisprudence of every civilized people, from the earliest times, that no absolute property can be acquired in flowing water. Like air, light, or the heat of the sun, it has none of the attributes commonly ascribed to property, and is not the subject of exclusive dominion or control.

As Blackstone observes (2 Blk. Com., 18), "‘Water is a movable, wandering thing, and must, of necessity, continue common by the law of nature; so that I can have only a temporary, transient, usufructuary property therein.” While the right to its use, as it flows along in a body, may become a property right, yet the water itself, the *corpus*of the stream, never becomes, or in the nature of things can become, the subject of fixed appropriation or exclusive dominion, in the sense that property in the water itself can be acquired, or become the subject of transmission from one to another. Neither sovereign nor subject can acquire anything more than a mere usufructuary right therein, and in this case the state never acquired, or could acquire, the ownership of the aggregated drops that composed the mass of flowing water in the lake and outlet, though it could and did acquire the right to its rise. These propositions have been often stated by jurists, and in judicial decisions in different forms, but it is believed that they all concur in the same general result. *Smith*v. *City of Rochester,*92 N. Y, 475; *Clinton*v. *Myers,*46 id., 516; *Pixley*v. *Clark,*35 id., 524; *Mayor*v. *Commissioners of Spring Garden,*7 Penn. St., 348; *Tyler*v. *Wilkinson,*4 Mason, 397; *Liggins*v. *Inge,*7 Bing., 682 ; *Kensit*v. *Great Eastern Rwy. Co.,*L. R., 23 Ch. Div., 566; L. R, 27 id., 122; *People*v. *N. Y. & M. B. Rwy. Co.,*84 N. Y., 568; Pufendorf Laws of Nature and Nations, Book 4, chap. 5; Mattel Lib., 1, chap. 20, § 234; 2 Bl. Com., p. 14; 3 Kent Com., 439, 440; Gould on Waters, §§ 204-209. The only property right, therefore, which the state acquired or ever had in the waters of Skaneateles Lake and its outlet, is the right to divert and use the same in such quantities as may be necessary for the use and operation of the canal. *Silsby Mfg. Co.*v. *State,*104 N. Y., 562; 6 N. Y. State Rep., 463.

Subject to this paramount right, the riparian owners may use the waters of the lake and stream for domestic or manufacturing purposes, and the public as a highway for boats and other craft. We think that the conditions of the grant to the city of Syracuse are such that no property right or interest, which the state has or ever had, is transferred, lost or impaired. After all the provisions *940of the statute are executed, the state will possess and enjoy every right, with respect to those waters, that it did before, and, if this is so, then no public property is transferred by the act from the state to the city.

The same result will follow if it be assumed that the state still retains its original proprietary right to the waters and- the bed of the lake. As such proprietor simply it would have no greater right to use or divert the water than any other riparian owner. Its paramount right to so use and divert it is not derived from its original ownership but from the exercise of the right of eminent domain. The rights thus acquired are broader than any that it possessed or could exercise as proprietor. It is not found that it has any other property in the waters of the lake than was acquired by the appropriation made by the canal board; but if it be conceded that the learned counsel for the plaintiff is right in his contention that the state owns the soil of the bed of the lake, such ownership is, nevertheless, subject to every easement and servitude necessary to the use of the water by the other riparian-owners,-so far as they may be entitled to use the same. *Smith*v. *City of*Rochester, 92 N. Y, 480.

If the city of Syracuse shall acquire lands upon the shores of the lake, the use of the soil under the water for the purpose of placing a pipe therein, is no invasion of any exclusive property right which the state has in such soil. We are of the opinion that no public property was appropriated by this act to local or private purposes. Aside from the reasons above stated, it may be observed that the word “appropriating,” as used in this section of the coustitution, refers to a transfer of public property as a gift or gratuity, and not to some right in or privilege connected with property belonging to the state transferred for an equivalent. By the provisions of the statute, the reservoir is to be enlarged and its storage capacity greatly increased and forever maintained at the expense of the city. The arrangement contemplated by the statute is one which, in the judgment of the legislature, would be mutually and equally advantageous to the city and the state, and such a law is not within the reason or purpose of the constitutional provision referred to. We think that the statute is not in conflict with any provision of the fundamental law, and is valid.'

The judgment of the general term should be reversed and that of the special term affirmed, with costs.

All concur, except Huger, Oh. J., not voting; Andrews, J., not sitting, and Finch, J., absent.