is it given the power of eminent domain to enable it to acquire the land necessary for the construction thereof. To state the case most favorably to the petitioner, it is seeking to condemn land to enable it to perform a contract which it has made with a purely private corporation in order to enable the latter, in turn, to perform a contract which it has made with a municipal corporation to convey to it the property thus acquired. But this property the municipal corporation has no power itself to acquire in the first instance, and, when acquired, it is under no obligation to maintain it for a public use. The situation is not analogous to that of a railroad corporation which has leased its lines to a similar corporation. A lesser public service corporation may be authorized to acquire land for the benefit of its lessee. Kip v. N. Y. & Harlem R. R. Co., 67 N. Y. 227; Matter of N. Y., L. & W. R. R. Co., 99 N. Y. 12, 1 N. E. 27. But the foundation for this authority is that:

"By its lease the lessor company in no respect escapes from or lessens its corporate duty to the state, but is continuing the performance of that duty through the agency of its lessee, and may at any time, through the failure of the latter to perform its covenant obligations or by its absolute loss of corporate life and existence become repossessed of its line and property and bound to operate it for itself." Matter of N. Y., L. & W. R. R. Co., supra.

In this case, after it has once parted with the property here sought to be acquired pursuant to its contract, petitioner can never become repossessed of the same, no matter what the fault or delinquency of its transferee. But it also appears that, in addition to the avowed purpose of acquiring defendants' land for the digging of this canal, two other acknowledged purposes exist: One, to take the material thus obtained and make use of it to fill up the adjoining low land of the Estates Company, thus making it available property; and the other, to construct upon the strip of land not exceeding 1,000 feet in width, upon the banks of the canal which it claims the right to acquire, bulkheads, wharves, and buildings. The use to which these. buildings are to be put is not disclosed. Even the agreements above referred to, between the town, the Estates Company, and petitioner, relate only to waterways, and not bulkheads, wharves, and buildings. We conclude, therefore, that statutory authority does not exist for the exercise by petitioner of the power of eminent domain for the purposes here disclosed. Further objection to the right to maintain these proceedings is made upon the ground, first, that the act above cited under which the Tidal Water Way Company obtained its corporate life was a private act, embracing more than one subject, which is not expressed in its title, contrary to the express provisions of section 16 of article 3 of the state Constitution; and, second, that the power conferred upon it to exercise the right of eminent domain is not limited to the exercise of such power for a public use, which is contrary to the implied prohibition found in section 6 of article 1 of the same instrument. Embury v. Conner, 3 N. Y. 511, 53 Am. Dec. 325; Powers v. Bergen, 6 N. Y. 358. That the act is a private act cannot be disputed. Economic Power & Construction Co. v. City of Buffalo, 195 N. Y. 286, 88 N. E. 389. Does it relate to more than one subject? The limit of the rule in this regard has been thus defined:

"When the subject 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." Economic Power & Construction Co. v. City of Buffalo, supra.

The subject expressed in the title of the act is a waterway company. It is difficult to see how the erection of "buildings, wharves, and docks" is any part of the ordinary function of a waterway or canal company, or how "warehouses" are necessary to the transaction of its business. But, if some of these purposes possibly might be regarded as incidental to the primary purpose, the acquisition of a strip of land not exceeding 1,000 feet in width on either side of the canal, upon which buildings and warehouses may be erected, certainly cannot be, since under another provision of the act authorizing the company to "lease or sell the real estate acquired by it" these may be disposed of to private individuals or corporations. This act is also subject to condemnation because it may authorize the taking of private property for a private use, even though petitioner continues to be the owner thereof. Matter of Eureka Basin Co., 96 N. Y. 42; Niagara Falls & Whirlpool R. Co., 108 N. Y. 375, 15 N. E. 429; Matter of Split Rock Cable Road Co., 128 N. Y. 408, 28 N. E. 506. In the Eureka Basin Case, supra, the court, speaking through Rapallo, J., said:

"The taking of private property for private purposes cannot be authorized even by legislative act, and the fact that the use to which the property is intended to be put, or the structure intended to be built thereon, will tend incidentally to benefit the public by affording additional accommodations for business, commerce or manufactures, is not sufficient to bring the case within the operation of the right of eminent domain, so long as the structures are to remain under private ownership and control, and no right to their use or to direct their management is conferred upon the public."

In this case the act provides that the corporation shall "regulate and fix the time and manner in which vessels, passengers and property shall pass through such canals and the toll to be paid therefor. If this might be termed an authority to the public generally to make use of the canals constructed by it upon complying with the regulations and paying the toll charges, one searches the act in vain for any provision therein authorizing the public to make use of its buildings and warehouses upon any terms or conditions whatever, even while the corporation continues to be the owner and in control thereof. “A possible limited use by a few, and not then as a right, but by way of permission or favor, is not sufficient to authorize the taking of private property against the will of the owner." Matter of Split Rock Cable Road Co., supra. So a possible limited right of a part of the property to be acquired is not sufficient if the remainder of the property remains under the absolute control of the condemning corporation or its grantee, freed from any right to the public to make use of the same except by its favor or consent. The test of the constitutionality of a legislative act is found, not in what has been, but what may be done under it. Nor is it possible in this case to separate those portions of this act which are in conflict with constitutional provisions from those which might, if existing independently, escape such con

demnation, permitting the latter to survive. The act not only defines the powers of petitioner, but gives to it corporate life. The Legislature might never have been willing to grant it existence if it had understood that it could not possess the powers which we have determined to be invalid. In this view of the case it becomes unnecessary to consider the sufficiency of the award of the commissioners. The judgment appointing these commissioners, and the order confirming their report, should be reversed, with costs; and, as the proceedings cannot be maintained, the same should be dismissed, with

costs.

THOMAS, J., concurs; CARR, J., concurs in separate opinion; RICH, J., reads for affirmance, with whom HIRSCHBERG, J., con

curs.

CARR, J. Without determining the question of the constitutionality of chapter 719 of the Laws of 1894, and as to which there is room for doubt, I feel constrained to vote for the reversal of the interlocutory and final orders in this proceeding, and I base my vote upon the single ground that the petitioner is plainly not seeking to acquire the lands in question for the purpose, to accomplish which the Legislature gave it the power of condemnation. When a corporation possessing the power of eminent domain seeks to take the land of another in invitum, that corporation must show, and the courts must decide, whether it is actually seeking to exercise such power within the use and purposes for which the power was granted. It is not enough that it intends to devote the land so acquired to a public use. The use must not only be public, but it must also be a part of the specific public use for which it has received the power. Erie Railroad Co. v. Steward, 61 App. Div. 480, 70 N. Y. Supp. 698; Id., 170 N. Y. 172, 63 N. E. 118. It is not necessary that such corporation shall require such lands for immediate use, but it may exercise the power "provided its necessities for such use in the immediate future. are established beyond reasonable doubt. * * * The exercise of this power is in derogation of individual rights, and is always burdensome and often injurious to the owner beyond the power of pecuniary compensation to wholly redress, and should be allowed only when the necessity for the land clearly appears, and its proposed use is clearly embraced within the legitimate objects of the power." Matter of Staten Island Rapid Transit Co., 103 N. Y. 252, 257, 8 N. E. 550. It seems to me that the power of eminent domain given to the petitioner by the act of 1894 was given for the sole purpose of acquiring lands necessary for the construction and the maintenance by it or its successors of a tidal waterway with a defined route in the then counties of Queens, Richmond, and Suffolk. There is no claim that the petitioner is seeking to condemn the lands in question as a part of a defined route on which it intends to construct and maintain a tidal waterway, with the use of connecting canals. Its plain purpose is to connect two bodies of tidal waters by the means of a short canal, and then to completely divest itself of any power or duty over the canal so constructed. It is seeking to construct this canal more as a private

contractor than as a quasi public agency. The grant of the power of eminent domain carries with it a public duty as well as a governmental power, and it seems quite extraordinary that a corporation can seek to exercise such power to accomplish a result which it is bound by private contract to abandon the moment the result is attained. This is not a case where the petitioning corporation simply intends to condemn for the benefit of a lessee, which possesses similar public powers and duties, as was the case in Kip v. New York & Harlem R. R. Co., 67 N. Y. 227; nor is it a case in which the petitioning corporation seeks to condemn land which it will need for its own corporate purposes in the near future, or which it may need, with the purpose of using its own system as a connecting link with other systems, and so increasing its own public usefulness, as was the case in Matter of Staten Island Rapid Transit Co., ut supra.

There is authority in this state that a railroad corporation which has leased its system for the full term of its corporate life may nevertheless exercise its power of eminent domain for a public use to be maintained by its lessee, but the reason for such holding, as given by the court which made it, is as follows: (a) That the statute which granted power to a railroad corporation to condemn lands for railroad purposes likewise authorized such corporation to condemn lands for the benefit of a lessee railroad corporation; (b) "and in the further consideration that by its lease the lessor company in no respect escapes from or lessens its corporate duty to the state, but is continuing the performance of that duty through the agency of its lessee, and may at any time, through the failure of the latter to perform its covenant obligations or by its absolute loss of corporate life and existence, become repossessed of its line and property and bound to operate it for itself, and that to the proper performance of its duty by itself or through its lessee the acquisition of lands or terminal facilities may be necessary and essential." Matter of Petition of N. Y., L. & W. R. R. Co., 99 N. Y. 12, 22, 1 N. E. 27, 31. Here, however, the petitioner is seeking to condemn land simply to perform a contract which it has with a purely private corporation, in order to enable that corporation to perform, in turn, a contract which the latter has made with a municipal corporation, the town of Hempstead, which last corporation has no power of eminent domain in the premises, and no statutory duty to maintain the proposed canal after it gets it by cession from the petitioner. The "canal" no doubt would be a public highway in a broad sense of the word, but it is not such a highway as comes within the provisions of the town law or the highway law.

While I feel that the result sought by the petitioner would be greatly to the public benefit in the locality affected, I am constrained to the opinion that the method by which the attainment of such result is sought has no warrant in law.

RICH, J. (dissenting). The constitutionality of the act, based upon the objection that it permits the taking of land by condemnation for private purposes, is not presented by the appellants, and there is no serious contention that the proposed canal or waterway is not to

be constructed for public use. The incorporating statute declares that lands required for the construction of the waterways "shall be deemed to be required for public use," which is sufficient to establish its public character. In addition, the contract under which the waterway is being constructed by the respondent obligates the petitioner upon its completion to immediately convey, transfer, and surrender it, with all of its appurtenances, to the town of Hempstead, "the same to be thereafter held and used by said town of Hempstead, and its inhabitants and the public generally, forever, according to the true intent and meaning of said town contract." The town contract provides that, upon the completion of the said waterways, they shall become the property of said town and subject to its municipal jurisdiction, the same as other town property, and declares its purpose to be to provide a continuous waterway from Jones inlet to East Rockaway inlet. It follows that, after the waterway is completed and transferred to the town, the petitioner cannot erect warehouses upon its banks, establish tolls for its use, or exercise the powers given by the incorporating statute, for the reason that such rights do not apply to a waterway owned by the town of Hempstead in which the petitioner will have no interest or control after such transfer. Nor can the town avail itself of the powers limited by the statute to the petitioner. The construction of this waterway was part of a proposition submitted to the electors of the town of Hempstead and adopted before the contracts were made. It was intended to be a public water highway. This being established, I think the case is brought within the rule declared in Matter of Burns, 155 N. Y. 23-27, 49 N. E. 246, that, the Legislature having determined the necessity for the exercise of the right of eminent domain, the validity of the act is not open to question on the ground that the use is not public. In Matter of William A. Fowler, 53 N. Y. 60, it was held that the necessity of the appropriation of land by those upon whom the Legislature has conferred the right of eminent domain cannot be inquired into by the courts; that is, the use to which the lands are to be put is public. The Legislature is the sole judge of the necessity unless it is otherwise provided in the act. This case has been cited and the rule reasserted many times, the latest by the Court of Appeals in Matter of Delavan Avenue, 167 N. Y. 259, 60 N. E. 589, and in People v. Fisher, 116 App. Div. 686, 101 N. Y. Supp. 1047. There is a manifest difference in the rules applicable to a corporation created under a general act, which claims to possess the power of eminent domain because of its character, and nature of the improvement it desires to make, under some other general act, and a corporation as to which the Legislature has determined the public character of the improvement to be made, and given the power of eminent domain for the purpose of acquiring land required for the authorized improvement. The act is not subject to the criticism that its purposes are not expressed in its title, which is, "An act to incorporate the Tidal Waterway Company and to define its rights, powers and privileges." This language is a notification to all persons interested that they may find in its provisions all of the rights and powers conferred upon the corporation to enable it