(8 Misc. Rep. 568.)

#### SWIKEHARD et al v. MICHELS et al.

(Supreme Court, Special Term, Steuben County.

May, 1894.)

1. Constituí ion at. Law—Special Laws—Construction of Sewer.

Laws 1892, c. 603, providing for the construction of a sewer in the city of Rochester and in a town adjoining the city, does not violate Const, art. 3, § IS, which forbids local or private laws for the drainage of swamps or other lowlands, though the sewer, when constructed, would incidentally drain certain lowlands.

2. Eminent Domain—Compensation for Land Condemned.

The act sufficiently provides for the payment of compensation for land taken by prescribing (section 6) that, if the commissioners cannot agree with the owners, they may proceed under the condemnation law.

Proceeding by George B. Swikehard and others against Fred P".

Michels and others to condemn lands for a sewer.

W. F. Cogswell, H. G. Pierce, and C. F. Bissell, for plaintiffs.

Thos. Raines, for defendants.

RUMSEY, J.

This proceeding has been begun under the authority conferred by chapter 603 of the Laws of 1892, providing for *778the construction of a sewer in certain wards of the city of Rochester, and in the town of Gates, which adjoins the city on the west. It has been adjudged that the work is necessary for the public health, and the plaintiffs have been duly appointed commissioners to carry it on. Being unable to agree with defendants for the purchase of lands required for the sewer, the plaintiffs have taken this proceeding. The answer contains denials of certain allegations of the petition ; but those allegations, I think, upon the testimony submitted, are sustained. The only question here presented is whether the act in question is constitutional.

That the construction of the sewer is required for a public purpose—namely, to preserve the public health—cannot be denied, because it has been so formally decided and adjudged. But the claim of the defendants is that, conceding the public purpose, the act is yet not within the power of the legislature, because that body is forbidden to pass a local or private bill providing for the drainage of swamps or other low lands, even for a public purpose.1 That this bill is local must be conceded. People v. Board of Sup’rs of Chautauqua, 43 N. Y. 10. It may, I think, be conceded, also, that a local bill which has for its sole or its main purpose the drainage of swamps or low lands, although such drainage was required for the public health, is not constitutional, although, in view of the rule that these limitations upon the power of the legislature are not to be extended (In re Gilbert El. Ry. Co., *70*N. Y. 361, 371), this may be open to argument, if it were necessary to deny it in this case. But I think it is not to be disputed that the legislature has now, as it always had, the power, by local act, to authorize the construction of a sewer in any city of the state. Such a power is nowhere prohibited by the constitution, and therefore the legislature may, by statute, direct it to be done, and prescribe the manner of doing it. People v. Flagg, 46 N. Y. 401; People v. Board of Sup’rs of Queens Co., 112 N. Y. 585, 588, 20 N. E. 549. Manifestly, it may provide for the carrying away of sewage, when the public health and convenience requires it, whether the territory to be drained by the sewer be within the bounds of an incorporated city or village, or be any other portion of the state so thickly settled that health and decency require that sewage and foul, refuse matter, which may breed pestilence, shall be removed. Indeed, did the needs of the city demand it, and the health of its citizens require such an action, the legislature might have directed the city authorities to construct the sewer upon the route selected, and pay for it out of the funds of the municipality (In re Mayor, etc., of New York, 99 N. Y. 569, 571, 585, 2 N. E. 642); the question in each case being whether, upon the whole, the particular enterprise is primarily for the benefit of the people of the city, and within the ordinary range of the municipal action. If those conditions exist, the purpose is a city purpose, although people outside are incidentally benefited. When a great trunk sewer is to be built in a large and rapidly growing city, proper regard for economy and the interests of the community requires that some *779thought should be taken for the future growth and wants of the city. The law may therefore prescribe, not only sufficient size to such a sewer, but may also direct such an extension as will supply the future needs of those who live, or are likely to live, within the area which might naturally drain into it. In re Mayor, etc., of New York, 99 N. Y. 569, 591, 2 N. E. 642. None of these things are seriously disputed by the defendants. They draw a distinction between the power of the legislature to drain swamps and low lands for the public health by local acts, which they deny, and its power in the same manner to require the construction of sewers to carry off the sewage from more or less thickly populated districts, which last power cannot be disputed. But, of course, the fact that more or less water is drawing off into a sewer for the purpose of draining a low piece of ground, which happens to lie near it, does not'invalidate the act authorizing its construction. Indeed, the use of sewers is quite as much to carry away collections of rain and surface water, which would otherwise become stagnant, as to carry off seAvage, strictly so called. Although such results may incidentally take place, it is of no importance, if the principal use of the seAver is to do the office which sewers are called upon to do. It is not material that the commissioners have planned too large a sewer, if that be the fact. That must be corrected, if at all, in another way. We are only concerned with the provisions and objects of the Iuav.

So we are brought to the question Avhether, in fact, this act is one proAdding for the drainage of swamps and low lands, or for the construction of a conduit to receive the sewage of a large extent of territory, actually and potentially the residence of great numbers of people. The act itself purports to provide for the construction of a sewer in a city, and upon adjoining territory,—a thing clearly within the power of the legislature. If we are bound by the title and provisions of the act, there can be no doubt that it is constitutional, and I do not see how any question can arise upon it. Just hoAV far the courts may go behind the ostensible purpose of an act, as shown upon its face, and examine into its effects and mode of execution, to enable them to declare its unconstitutionality, seems to be a little doubtful. In Manufacturing Co. v. Shanahan, 128 N. Y. 345, 28 N. E. 358, it- was held that in deciding these questions the scrutiny which the court might exercise was confined to matters appearing upon the face of the bill, and to things which were the subject of judicial notice. When the purpose of the bill was one within the power of the legislature to compass, and the means used were appropriate for that purpose, and not forbidden, it was held that a court was not at liberty to take testimony to show that the real effect of the bill was to do something different, and for that reason hold the bill to be unconstitutional. Within that rule, there is no reason here to say that the law is not valid. It is passed to accomplish a thing which is within the power of the legislature, and which may lawfully be done by a local act, if we are to accept the bill itself as containing the true statement of its object. But if that be not so, and we are to examine the testimony to ascertain whether or not the purpose which the law will in fact accomplish *780be within the power of the legislature by local act, what do we find?' We find that Deep Hollow creek, so called, is a small stream taking-its rise in the town of Gates, near the western limits of the city of Rochester, and running through the city to the Genesee river. That portion of the town of Gates lying adjacent to the city, and which naturally drains into the creek, is largely opened up by streets, and laid out into building lots, and, to a considerable extent, thickly settled. The streets so laid out are extensions of the city streets, and, though not improved, are opened. The creek is an outlet for sewers-in the town from the houses of the people living within the drainage area, and from shops and factories, and also for large sewers within the city limits. The population outside of the city is quite large, and increasing. There are already, within the drainage area of the-sewer in the town, 325 houses, the sewage from which either does now, or in no great time hereafter will, drain into the creek. The-number of acres in the drainage area is 6,544, of which 877 are within the limits of the city, and the remainder lie in the town adjoining the city limits. This land is generally high and rolling, but there are scattered through it low and wet spots, some of which are already drained and improved, and some of which are still swampy. The total quantity of land is between 600 and 700 acres, of which about 100 acres are in the city. This low land lies in detached -pieces,—part of it already opened up for building lots, both outside and inside the city. It is fair to infer that within no longtime this drainage area will be thickly settled. Until that occurs the sewage and drainage water from the now-settled parts of the territory can be carried off in a much smaller sewer than the one-proposed. But when this territory shall have been built up the-proposed sewer will be none too large to dispose of the sewage and water which will flow into it. Considering these facts, it is clear that the principal object of the law is to provide means of disposing of the sewage which now flows out of this territory, and that which it is reasonable to expect must be taken care of within a short time.. It is quite true that much surface water will flow through it, and no doubt many wet spots will be drained by it, but such incidental benefits will not warrant the condemnation of the law. It is to be judged by its practical effect and operation (Forster v. Scott, 136 N. Y. 577, 584, 32 N. E. 976), and, so judged, not to be condemned unless it is clear and plain that some provision of the constitution has been violated (People v. Rice, 135 N. Y. 473, 484, 31 N. E. 921). Indeed, it is just as necessary that a sewer should carry off surface water from the streets and low places as that it should take away the sewage. Upon all the facts, it seems to. me that it would be a flagrant abuse of the power of the court to hold that this law was-not within the power of the legislature to enact.

It is further objected that the act is unconstitutional because it does not provide for the payment of a compensation for the land taken. The statute (section 6) prescribes that, if the commissioners-cannot agree with the owners, they may proceed under the condemnation law. This reference to the general law by way of prescribing the modes of condemning land is not objectionable. People v. *781Banks, 67 N. Y. 568. The condemnation act provides not only the manner of procedure to appraise the damages; but it directs the form of the final order, which is that “upon payment of such compensation” the plaintiff shall be entitled to enter into the land, ■etc. Section 3371. No lands can be taken unless this is done. It is true that the commissioners are authorized to issue certificates in payment for lands (section 11), but no owner is required to accept them. He may, if he chooses, rely on the direction of the final order in the proceedings, and insist upon bis money before his land is actually taken. Upon the whole case, the plaintiffs are entitled to an order appointing commissioners to appraise the lands of the defendants. Ordered accordingly.

1

 Article 3, § 18.