text:
    In the Matter of the City of Utica, Appellant, against Water Pollution Control Board, Respondent.
    Argued November 5, 1958;
    decided January 22, 1959.

      Jack J. Danella, Corporation Counsel (Stanley Drejza of counsel), for appellant.
    The statute delegates legislative power to the Board in violation of section 1 of article III of the State Constitution. (Darweger v. Staats, 267 N. Y. 290; Matter of Meit v. P. S. & M. Catering Corp., 285 App. Div. 506; Matter of Federal Tel. & Radio Corp. v. Corsi, 301 N. Y. 95; Panama Refining Co. v. Ryan, 293 U. S. 388; Packer Collegiate Inst. v. University of State of N. Y., 298 N. Y. 184; Matter of Levine v. O’Connell, 275 App. Div. 217, 300 N. Y. 658.)

      Louis J. Lefkowitz, Attorney-General (Richard H. Shepp and Paxton Blair of counsel), for respondent.
    I. The Appellate Division properly held that the Water Pollution Control Law is not objectionable as an improper delegation of legislative power. (Matter of Marburg v. Cole, 286 N. Y. 202; Matter of Meit v. P. S. & M. Catering Corp., 285 App. Div. 506; Matter of Federal Tel. & Radio Corp. v. Corsi, 301 N. Y. 95; Matter of Suffolk County v. Water Power & Control Comm., 269 N. Y. 158; Packer Collegiate Inst. v. University of State of N. Y., 298 N. Y. 184; Panama Refining Co. v. Ryan, 293 U. S. 388; Radio Comm. v. Nelson Bros. Co., 289 U. S. 266; Lichter v. United States, 334 U. S. 742; Noyes v. Erie & Wyoming Farmers Co-op. Corp., 281 N. Y. 187; American Trucking Assn. v. United States, 344 U. S. 298.) II. The constitutional objections raised by appellant’s petition that the Water Pollution Control Law violates the due process clause of the Constitution of the State and of the United States and that it infringes upon the Home Buie Amendment of the State Constitution are without substance. (Lincoln Bldg. Associates v. Barr, 1 N Y 2d 413; Trenton v. New Jersey, 262 U. S. 182; Williams v. Mayor, 289 U. S. 36; City of New York v. Village of Lawrence, 250 N. Y. 429.) III. Petitioner-appellant, as a “ creature ” of the Legislature, has no standing to question the power of the Legislature to enact the Water Pollution Control Law and delegate functions to the Water Pollution Control Board. (Black Riv. Regulating Dist. v. Adirondack League Club, 307 N. Y. 475; Hunter v. Pittsburgh, 207 U. S. 161; Trenton v. New Jersey, 262 U. S. 182; Williams v. Mayor, 289 U. S. 36; Robertson v. Zimmermann, 268 N. Y. 52; City of New York v. Village of Lawrence, 250 N. Y. 429.)
   Fuld, J.

After years of careful and detailed study of the problem of water pollution and its abatement (Report of Joint Legislative Committee, N. Y. Legis. Doc., 1927, No. 78; Reports of Special Committee on Pollution Abatement, N. Y. Legis. Docs., 1947, No. 59; 1948, No. 50; 1949, No. 51), the Legislature in 1949 enacted the Water Pollution Control Law (L. 1949, ch. 666; Public Health Law, art. 12, §§ 1200-1263). The act, designed to prevent pollution of the waters of the State, created the Water Pollution Control Board and directed it to develop a comprehensive program for the abatement and control of such pollution.

Acting under the authority of the statute, the Board held public hearings and in 1950 adopted classifications and standards of quality and purity (N. Y. Off. Comp, of Codes, Rules & Regulations, 6th Off. Supp., 1951, p. 208 et seq.). Then, in 1954, following extensive studies and surveys, and after further public hearings, it assigned classifications and standards of quality and purity to the waters within the Utica area (N. Y. Off. Comp, of Codes, Rules & Regulations, 10th Off. Supp., 1955, p. 300 et seq.). Some months later, in March of 1955, the Board submitted a pollution abatement plan to the City of Utica. It was noted in that plan that sewers were discharging untreated sewage from the City into the Mohawk River and the Barge Canal, and the suggestion was made that the City should proceed with the completion or revision of final plans, approved six years before, for a proposed sewage treatment plant. When, however, two years more went by and nothing was done to abate the pollution caused by the sewage discharge complained of, the Board brought a proceeding against the City, charging it with violations of section 1220 of the Public Health Law.

The City thereupon instituted this article 78 proceeding, in the nature of a writ of prohibition, to restrain the Board from continuing with the hearing of charges against it upon the ground that the Water Pollution Control Law is unconstitutional. The court at Special Term dismissed the petition, the Appellate Division unanimously affirmed and the City prosecutes the present appeal as of right on constitutional grounds. Although it had originally urged additional infirmities, it is the City’s present position that the Water Pollution Control Law constitutes an invalid delegation of legislative authority, a grant of power, without adequate standards for the Board’s guidance, in violation of the State Constitution (art. Ill, § 1).

The Water Pollution Control Law opens with a clear statement of policy. “It is declared to be the public policy of the state of New York ”, the statute recites, “ to maintain reasonable standards of purity of the waters of the state consistent with public health and public enjoyment thereof, the propagation and protection of fish and wild life * * *, and the industrial development of the state, and to that end require the use of all known available and reasonable methods to prevent and control the pollution of the waters of the state of New York ” (Public Health Law, § 1200). The purpose of the law is then set out—“ to safeguard the waters of the state from pollution by: (a) preventing any new pollution, and (b) abating pollution existing when this chapter is enacted, under a program consistent with the [above] declaration of policy” (§ 1201). Various terms, such as “sewage,” “industrial waste” and “ other wastes,” are defined (§ 1202), and section 1209, reflecting an awareness of the complicated nature of the problem presented, goes on to recite that, “ due to variable factors, no single standard of quality and purity of the waters is applicable to all waters of the state or to different segments of the same waters” (§ 1209, subd. 1). The Board, and there is a direction for the use of qualified, fully trained, technical experts in the field of environmental sanitation, pollution abatement and public health (§ 1206), is empowered to classify the waters of the State ‘ ‘ in accordance with considerations of best usage in the interest of the public ” (§ 1209, subd. 2). The factors to be weighed, in adopting the classification, include the physical nature of the stream itself, the character of the district bordering the stream, the uses that have been, or may be, made of said waters for any of the purposes stated and the extent of their present defilement or fouling (subd. 3). And, in establishing standards of purity and quality, it is further specified (subd. 5), consideration is also to be given to such other factors as “the extent” to which enumerated substances, expressed in terms of their physical, chemical or biological properties, “may be permitted in the water”.

And we would simply add that the Board’s classification of waters and the standards of quality and purity formulated by it are to be adopted only after public hearing, on notice, to the municipalities and all others concerned (§ 1209, subds. 2, 7), and that the Board’s action in this regard, as well as its powers of enforcement, are subject to judicial review (§ 1244).

The abatement and prevention of water pollution is a matter of state concern, and legislation designed to regulate and control such pollution is within the scope of the state’s police power. (See, e.g., Matter of Suffolk County v. Water Power & Control Comm., 269 N. Y. 158, 164-165; City of Niles v. Stream Control Comm., 296 Mich. 650, 654; Shirley v. New Hampshire Water Pollution Comm., 100 N. H. 294, 299-300; State Board of Health v. City of Greenville, 86 Ohio St. 1, 21-22; Board of Purification of Waters v. Town of Bristol, 51 R. I. 243, 245; City of Huntington v. State Water Comm., 137 W. Va. 786, 794 et seq.) Madison Metropolitan Sewerage Dist. v. Committee on Water Pollution, 260 Wis. 229, 249 et seq.) The City does not dispute this, and we turn immediately to a consideration of the question presented, namely, whether there has been an -unconstitutional delegation of legislative power, whether, in other words, the Water Pollution Control Law contains sufficiently definite standards to guide and limit the Board’s exercise of power.

The Legislature may constitutionally confer discretion upon an administrative agency only if it limits the field in which that discretion is to operate and provides standards to govern its exercise. (See, e.g., Packer Collegiate Inst. v. University of State of N. Y., 298 N. Y. 184, 189-190; Noyes v. Erie & Wyoming Farmers Co-op. Corp., 281 N. Y. 187, 194; Matter of Small v. Moss, 279 N. Y. 288, 295, 298-299; Panama Refining Co. v. Ryan, 293 U. S. 388; see, also, 1 Benjamin, Administrative Adjudication [1942], p. 294.) That does not, however, mean that a precise or specific formula must be furnished in a field ‘ where flexibility and the adaptation of the [legislative] policy to infinitely variable conditions constitute the essence of the program.” (Lichter v. United States, 334 U. S. 742, 785.) It is enough if the Legislature lays down “ an intelligible principle ’ ’, specifying the standards or guides in as detailed a fashion as is reasonably practicable in the light of the complexities of the particular area to be regulated. (See Lichter v. United States, supra, 334 U. S. 742, 785; American Power Co, v. S. E. C., 329 U. S. 90, 105; Buttfield v. Stranahan, 192 U. S. 470, 496; Texas Co. v. Montgomery [U. S. Dist. Ct., E. D. La.], 73 F. Supp. 527, 533-534, affd. 332 U. S. 827; Matter of Marburg v. Cole, 286 N. Y. 202, 212; Johnson v. Parsons, 207 Misc. 107, 113-114, affd. 285 App. Div. 601.) Obviously, the Legislature cannot “ constitutionally [be] required to appraise beforehand the myriad situations to which it wishes a particular policy to be applied and to formulate specific rules for each situation. Necessity therefore fixes a point beyond which it is unreasonable and impracticable to compel [the Legislature] to prescribe detailed rules ”. (American Power Co. v. S. E. C., supra, 329 U. S. 90, 105.) If it were otherwise, the court added, the “ legislative process would frequently bog down”. Or, to state the matter somewhat differently, as another court did in treating the Louisiana statute dealing with the very subject of water pollution, “it would have been impossible ”, considering the purpose and aim of the act, “ for the Legislature to prescribe a formula for the Commission’s guidance or to lay down rules with reference to harmful pollution, applicable to all waters: "What might be harmful pollution in one body of water might not be harmful pollution in another. Of necessity, a determination of the facts of what might constitute harmful pollution was left to a fact-finding group. The Legislature was compelled to create an agency to administer the act.” (Texas Co. v. Montgomery, supra, 73 F. Supp. 527, 533-534, affd. 332 U. S. 827.)

The job of water pollution control which confronted the Legislature was not an easy one. Conditions varied considerably in the different waters throughout the State and even in different segments of the same waters and, in consequence, the problem and its solution had to be approached in fairly general fashion. It was, therefore, proper and fitting for the Legislature to assign broad functions to the Board, particularly when it was contemplated and understood that its members were to bring to their work a familiarity with conditions which the individual legislators could not be expected to possess. (Cf. American Trucking Assns. v. United States, 344 U. S. 298, 310.) Having clearly expressed the policy underlying the law, the Legislature was privileged to leave to the Board the power to decide what properties indicate a polluted condition of a particular class of waters and to assign the appropriate classification to any water of the State. Such a power is no more than one to make subordinate rules and determine the facts to which the legislative policy is to apply. In other words, the Legislature is not required to break its plan down into fine detail in order to carry through its purpose of safeguarding the waters of the State.

As already abundantly demonstrated, where, as here, the Legislature has provided the manner in which the administrative body must act and has indicated the matters it must consider—e.g., the physical factors actually listed as well as factors familiar to the art or science of environmental sanitation, pollution abatement and public health—as the predicate for its determination, the statute may not be stricken as an invalid delegation of legislative power. Having in mind the breadth of the problem of water pollution control, its technical and intricate character, the Legislature could hardly have been more specific in prescribing essential guides. As the United States Supreme Court expressed it, the Legislature “ legislated on the subject as far as was reasonably practicable,” the necessities of the case compelling it “to leave to executive officials the duty of bringing about the result pointed out by the statute. ” (Buttfield v. Stranahan, supra, 192 U. S. 470, 496.) To insist upon more precise standards than furnished by the statute before us would be tantamount to declaring that the Legislature’s power to control pollution of the State’s waters could not be effectively exercised.

The order of the Appellate Division should be affirmed, without costs.

Chief Judge Conway and Judges Desmond, Dye, Froessel and Burke concur with Judge Fuld; Judge Van Voorhis dissents and votes to reverse and to hold article 12 of the Public Health Law to be an unconstitutional delegation of power, due to the construction placed upon that statute by the court in Matter of Town of Waterford v. Water Pollution Control Bd. (5 N Y 2d 171, decided herewith), and for the reasons stated in his dissenting opinion in that case.

Order affirmed.

      . It is of more than passing interest that every state in this country has legislation designating a board or a commission to deal with the problem of water pollution. And, in virtually all of the statutes, extensive powers are delegated to the agency, the provisions, in the main, being as broad and general as those found in New York’s Water Pollution Control Law, the standards prescribed no more precise or specific. (See, e.g., Connecticut [Pub. Acts, 1957, No. 364]; Illinois [Rev. Stat., 1957, ch. 19, § 145.1 et sag.]; Michigan [Stat. Ann., Vol. 2, tit. 3, ch. 13, § 3.521 et sag.]; Ohio [Page’s Rev. Code Ann., tit. 61, § 6111.01 et seq.]; Pennsylvania [Purdon’s Stats. Ann, (perm, ed.), tit. 35, § 691.1 et seq.; tit. 71, art. XVIII, § 461 et seq.]; Washington [Rev. Code, tit. 90, eh. 48, § 90.48.010 et seq.]; West Virginia [Code, 1955, ch. 16, art. 11, § 1401 et seq.]; Wisconsin [Stats. Ann., 1955, tit. XV, eh. 144, § 144.01 et seq.]; see, also, Report of Special Committee on Pollution Abatement, N. Y. Legis. Doc., 1949, No. 51, Appendix “A”, p. 71; Report of Special Committee on Pollution Abatement, N. Y. Legis. Doc., 1948, No. 50, Appendix “ G”, p. 98.)


source: Caselaw Access Project

author: Froessel, J. Van Voorhis, J. (dissenting).

license: Public Domain

text:
    In the Matter of the Town of Waterford et al., Appellants, against Water Pollution Control Board, Respondent.
    Argued October 17, 1958;
    decided January 22, 1959.

      John T. De Graff, George E. O’Connor and John A. Murray for appellants.
    I. The Board failed to comply with section 1209 of the Public Health Law by refusing to give any consideration to the fiscal and economic aspects of its classification. II. The Appellate Division erred in holding that all questions of cost and fiscal consequences had been “removed from the Board’s consideration” by the Legislature. III. The statute delegates legislative power to the Board in violation of section 1 of article III of the State Constitution. (Matter of Small v. Moss, 279 N. Y. 288; Parker Collegiate Inst. v. University of State of N. Y., 298 N. Y. 184; Matter of Levine v. O’Connell, 275 App. Div. 217, 300 N. Y. 658; Matter of Fink v. Cole, 302 N. Y. 216; Darweger v. Staats, 267 N. Y. 290; People v. Klinck Packing Co., 214 N. Y. 121; Matter of Lyons v. Prince, 281 N. Y. 557; Panama Refining Co. v. Ryan, 293 U. S. 388; Schecter Corp. v. United States, 295 U. S. 495.) IY. The Board failed to hold a public hearing as required by law, failed to make any findings of fact to support its determination, and failed to accord petitioners an opportunity to test by cross-examination the evidence or reports considered by the Board in making its determination. (Matter of New York Water Service Corp. v. Water Power & Control Comm., 283 N. Y. 23; Matter of Elite Dairy Prods, v. Ten Eyck, 271 N. Y. 488; Matter of New York State Guernsey Breeders Co-op. v. Noyes, 284 N. Y. 197; Matter of Collins v. Behan, 285 N. Y. 187; Matter of Barry v. O’Connell, 303 N. Y. 46; Morgan v. United States, 304 U. S. 1; Ohio Bell Tel. Co. v. Commission, 301 U. S. 292; Matter of Long, 287 N. Y. 449; Matter of Williams v. Du Mond, 282 App. Div. 76; Matter of Nash v. Brooks, 276 N. Y. 75.)

      Walter E. Burke, Corporation Counsel, for City of Cohoes, amicus curios, in support of appellants’ position.
    I. The classification adopted by the Water Pollution Control Board in this case would prevent other more necessary municipal improvements far into the future and would impress upon industries and the small owners of real property a confiscatory rate of tax. II. Economic considerations should be considered iby the Water Pollution Control Board before any official classification of the Mohawk or Hudson Rivers is adopted.

      Timothy J. Fogarty, Corporation Counsel, for City of Troy, amicus curies, in support of appellants’ position.
    The cost of constructing a sewage disposal plant today, its maintenance costs, and the cost of financing such a project would be' an insurmountable financial problem for the City of Troy.

      Louis J. Lefkowitz, Attorney-General (George H. Rothlauf and Paxton Blair of counsel), for respondent.
    I. The Board fully complied with all of the requirements of section 1209 (former § 109) of the Public Health Law in classifying the waters of the Mohawk River Drainage Basin. (Town of Meredith v. State Bd. of Health, 94 N. H. 123; State ex rel. Martin v. City of Juneau, 238 Wis. 564.) II. The Board gave due notice of the public hearing as prescribed by section 1209 of the Public Health Law. (Anthony v. Schofield, 265 App. Div. 423; Saffold v. Fellows, 219 App. Div. 865; Miller v. Shall, 67 Barb. 446; Schenck v. McKie, 4 How. [U. S.] 246.) III. The public hearing held by the Board was in accordance with law. The Board was acting in a quasi-legislative capacity and, therefore, it was not required to make findings of fact or to permit cross-examination. (Shirley v. New Hampshire Water Pollution Comm., 100 N. H. 294; Prentis v. Atlantic Coast Line, 211 U. 8. 210; Pacific States Co. v. White, 296 U. S. 176; Rindge Co. v. County of Los Angeles, 262 U. S. 700; Kaskel v. Impellitteri, 306 N. Y. 73; Matter of Neddo v. Schrade, 270 N. Y. 97; Matter of Sherman, 76 Misc. 45; Norwegian Nitrogen Co. v. United States, 288 U. S. 294.) IV. The constitutionality of the statute was not raised by petitioners in the courts below and, therefore, it may not now for the first time be urged in this court. The delegation of legislative power has been accompanied by statutory «standards for its exercise and, therefore, there has been no unlawful delegation of legislative power.' (Nod-Away Co. v. Carroll, 240 N. Y. 252; New York Bank Note Co. v. Hamilton Bank Note Co., 180 N. Y. 280; Dodge v. Cornelius, 168 N. Y. 242; Dr. David Kennedy Corp. v. Kennedy, 165 N. Y. 353; Purdy v. Erie R. R. Co., 162 N. Y. 42.) V. The Water Pollution Control Act contains proper guides and standards to control the exercise of the delegated power. (Matter of Bethlehem, Union Free School v. Wilson, 303 N. Y. 107; Noyes v. Erie & Wyoming Farmers Co-op. Corp., 281 N. Y. 187; Matter of Elite Dairy Prods, v. Ten Eyck, 271 N. Y. 488; People ex rel. Doscher v. Sisson, 222 N. Y. 387; Matter of Trustees of Vil. of Saratoga Springs v. Saratoga Gas, Elec. Light & Power Co., 191 N. Y. 123; Matter of Aloe v. Dassler, 278 App. Div. 975, 303 N. Y. 878.)
   Froessel, J.

In this article 78 proceeding, instituted pursuant to section 1244 of the Public Health Law, the Town and the Village of Waterford, hereinafter called appellants, are challenging the right of the Water Pollution Control Board of this State, hereinafter called the Board, to classify the waters of that section of the Mohawk River Drainage Basin extending from its mouth to the first dam above Cohoes Falls as Class C waters.

Pursuant to a legislative mandate contained in subdivision 2 of section 1209 of the Public Health Law, the Board in 1950, after public hearings, adopted Classifications and Standards of Quality and Purity for the waters of the State (N. Y. Legis. Doc., 1951, No. 69, pp. 76-78; N. Y. Off. Comp, of Codes, Rules & Regulations, 6th Off. Supp., p. 208 et seq.). The system provides seven classes for fresh surface waters according, in essence, to the highest and best use to which the water may be put, and may be briefly summarized as follows:

AA and A: Drinking water (the only difference between the two being the type of treatment required to render the water fit to drink)
B: Bathing
C: Fishing
D: Agricultural or industrial water supply
E: Sewage or waste disposal and transportation
F: Sewage or waste disposal only, under such conditions as will not cause a public nuisance.

Classes AA to D require sewage treatment; classes E and F do not. This classification system, which appellant does not challenge, was one of the initial steps (after a survey) in implementing the comprehensive program of water pollution control envisaged by the Water Pollution Control Act (Public Health Law, art. 12, §§ 1200-1263). The Act was enacted in 1949 (L. 1949, ch. 666) after three years of exhaustive studies and reports by a special legislative committee empowered to study the problem of water pollution throughout the State (N. Y. Legis. Docs. 1947, No. 59; 1948, No. 50; 1949, No. 51).

The broad policy underlying the Act is stated as a declaration of policy in section 1200:

“It is declared to be the public policy of the state of New York to maintain reasonable standards of purity of the waters of the state consistent with public health and public enjoyment thereof, the propagation and protection of fish and wild life, including birds, mammals and other terrestrial and aquatic life, and the industrial development of the state, and to that end require the use of all known available and reasonable methods to prevent and control the pollution of the waters of the state of New York.”

The purpose of the Act (§ 1201) is to safeguard the waters of the State by preventing new pollution and by abating existing pollution, and the Board, comprising the heads of five departments of the State Government, is given broad powers, duties and responsibilities in effecting these goals (§ 1208). Vested riparian rights are in no way involved. (See People ex rel. Loomis v. Canal Appraisers, 33 N. Y. 461.)

As already noted, the Board established a system of classification in 1950, and in implementing this system sections 1208 and 1209 envisaged a four-step procedure (N. Y. Legis. Doc., 1951, No. 69, pp. 73-74): (1) a survey of all the waters throughout the State; (2) the classification and assignment of appropriate quality standards to all such waters or segments thereof; (3) the development of comprehensive programs for the abatement of pollution which contravenes the. standards established for such waters, and (4) the execution of these programs through co-operative endeavors so far as possible, or, if necessary, through the issuance and enforcement of orders requiring abatement of pollution.

In the instant case we are concerned with step 2 of this procedure, whereby a section of the Mohawk River—not a “mountain rill”—bordering on the Town and the Village of Waterford was classified as 0 water. As a result of such classification, appellants, who for a long period had been discharging sewage into the river without any kind of treatment, may be required to cease such practice and eventually to construct sewage treatment facilities. They contend on this appeal that the 0 classification should be set aside for four reasons, which we shall discuss separately.

Their first contention is that in assigning the 0 classification to the waters involved, the Board failed to comply with section 1209 of the Public Plealth Law in that it failed to give any consideration to the fiscal and economic aspects of its classification. Section 1209, which recognizes that “ no single standard of quality and purity of the waters is applicable to all waters of the state or to different segments of the same waters ”, provides that the classification of waters made by the Board “ shall be made in accordance with considerations of best usage in the interest of the public and with regard to the considerations mentioned in subdivision three hereof ” (emphasis supplied). Subdivision 3 reads as follows:

“In adopting the classification of waters and the standards of purity and quality above mentioned, consideration shall be given to:
(a) the size, depth, surface area covered, volume, direction and rate of flow, stream gradient and temperature of the water;
(b) the character of the district bordering said waters and its peculiar -suitability for the particular uses, and with a view to conserving the value of the same and encouraging the most appropriate use of lands bordering said waters, for residential, agricultural, industrial or recreational purposes;
(c) the uses which have been made, are being made or may be made, of said waters for transportation, domestic and industrial consumption, bathing, fishing and fish culture, fire prevention, the disposal of sewage, industrial waste and other wastes, or other uses within this state, and, at the discretion of the board, any such uses in another state on interstate waters flowing through or originating in this state;
(d) the extent of present defilement or fouling of said waters which has already occurred or resulted from past discharges therein.”

Appellants insist that in deciding whether a particular classification is in the “ public interest ” and encourages “ the most appropriate use of lands bordering the waters for 1 residential ’ and 'industrial’ purposes”, the Board, in order to comply with the statute, must take into account the “ economic and fiscal ’ ’ impact of the classification upon the municipalities aifected. Appellants claim that if the C classification involved here is permitted to stand, they would be forced to levy a 150 per cent increase in taxes and be required to forego all other civic improvements for at least a generation”; this claim respondent denies. In other words, they maintain, as does Judge Van Voobhis, that in classifying the waters of this State to .prevent and control the pollution ” thereof' (Public Health Law, § 1200) the Board’s determination as to reasonable standards of purity” or impurity should depend not on the actual facts, but rather in some measure on how much it will cost to abate or prevent pollution. It is another way of saying that a physician may not diagnose a serious disease as such if the patient cannot afford the cost of cure.

The Appellate Division, in confirming the Board’s determination, held that problems of municipal financing were not among the considerations contemplated by paragraph (b) of subdivision 3 of section 1209,” and hence need not be considered by the Board in adopting a classification of particular waters. It found strong support for its position in the 1947, 1948 and 1949 reports of the Special Legislative Committee on Pollution Abatement, which led to the enactment of article 12 of the Public Health Law, and in section 1224 of the statute, which reads, in pertinent part, as follows:

“ * * * if, after public hearing, the board finds that it is impossible or impracticable for any person to comply with the standards, determinations or orders of the board as to treatment of sewage * * * because of financial inability (due to statutory restrictions on borrowing power or otherwise) to construct the necessary treatment works or provide other adequate means of disposal, the hoard shall not order the abatement * * * during such period of time, not in excess of five years, as the board determines necessary in order to provide means for disposal or treatment of such sewage * * * so as to comply with such recommendations or such requirements. Extensions of time beyond the five-year or shorter period may be granted by the board after public hearing, if the person involved shows to the satisfaction of the board that he has diligently tried to comply with the orders Of the board.” (Emphasis supplied.)

Here, felt the court, was an express recognition in the statute itself of the fiscal problems involved in the abatement of water pollution and of the “ conflict between the factor of costs and the concept of public policy” which the Legislature “determined to enunciate ”.

We agree fully with the views expressed by the Appellate Division. There is nothing in the statute that requires the Board to consider probable costs or relative priorities as between municipal public works projects, at the time it adopts a classification for particular waters. Nowhere in section 1209, which sets out the criteria to govern a particular classification, is there any mention of financial costs, fiscal conditions or public works priorities. The statute does recognize, in section 1224, that financial disability might impede the construction of the facilities needed to comply with adopted classifications; the relief provided for, however, is not the annulment of the classification previously assigned but an extension of time in which to effect the needed improvements.

It is quite apparent that appellant is premature in seeking to raise fiscal considerations at the time of classification. At this stage, the Board is merely applying its over-all system of water classifications and quality standards to a particular body of water, in accordance with the 1 best usage ’ ’ of that water and in the light of hydrologic factors, the character of the surrounding district, the past, present and foreseeable uses of such waters and the extent of present pollution. The proper time to consider the financial ability of affected municipalities to comply with established standards is when the Board, in accordance with its previously assigned classifications, evolves a comprehensive program to abate pollution in the classified waters. If at that time a municipality demonstrates that it is financially unable to provide the treatment works necessary to cure existing pollution, the Board is empowered to grant extensions of time.

Appellants contend that if the fiscal and economic aspects of water purification cannot properly be raised at the time of classification, then they can never influence a particular classification, since the municipality is legally bound to abide by the classification made, subject only to such deferment as the Board may allow. The obvious answer to this is that the Legislature well knew that a comprehensive water purification program would impose a financial burden upon the municipalities of the State, but determined, by enacting the Pollution Control Act, that the pressing need for water purification outweighed any financial hardships incident thereto.

One of the initial objectives of the Special Legislative Committee on Pollution Abatement, whose reports led to the enactment of the Act, was:

“ To study the problem of financing pollution abatement works, and the ability of municipalities and industries to construct and operate such projects.” (N. Y. Legis. Doc., 1947, No. 59, p. 15.)

Each of the reports of the committee devoted a separate section to the “ fiscal factors in pollution abatement ”, and manifested a growing concern over the fiscal limitations imposed by law on municipalities that would impede their ability to finance needed pollution abatement facilities. The life of the committee was extended for two years, after the enactment of the Act in 1949, and its “most important function” in 1950-51 “ centered around the solution of the fiscal problems ” (N. Y. Legis. Doc., 1951, No. 69, p. 35). The committee was instrumental in proposing and in having passed: (1) legislation providing for increased revenues from sewer rents, and (2) a constitutional amendment which allows municipalities to incur additional debt by permitting an advance exclusion of up to 75% from the constitutional debt limit, for self-liquidating pollution abatement projects, 'and which includes other provisions having “ a beneficial effect on the fiscal ability of municipolities to finance needed sewer systems 'and seWage treatment plant” (id. p. 26, pp. 24-25). It is interesting to note that, in concluding their discussion of the fiscal problems in their 1951 report, the committee stated (p. 41):

The adoption of the proposed constitutional amendment relating to debt limits and of legislation to implement it, as well as the revision of present sewer rental provisions, may be expected to eliminate substantially all of the constitutional and legal barriers to the financing of pollution abatement.” (Emphasis supplied.)

This would tend to cast doubt on appellants’ claim of financial inability to construct and operate a sewage disposal plant, which is disputed by respondent, as well as like claims made by the Cities of Cohoes and Troy in their amici briefs. It may fairly be said that much of their difficulty is due to their failure in the past to provide needed sewage disposal facilities, as other communities have done.

It is true that the committee noted (at pp. 41-42) that economic difficulties might still be encountered if the cost of installations should prove disproportionately high, but it is significant to note that in discussing this possibility it stated:

‘ ‘ It will be necessary to study such situations individually, when and if they develop, taking into consideration the resources of the municipality, any unusual difficulties which increase the cost of installation, and the extent of sewage treatment required to meet the standards set up by the Pollution Control Board.”

It seems clear that the time contemplated for considering these factors was not when the Board assigned a classification to particular waters, but when they were evolving their program to prevent or abate pollution in the classified waters.

Although the only relief appellants seek, in reference to their first contention, is a remission to the Board to re-evaluate the classification in the light of probable costs, it is quite clear from their petition (par. 15th) and Schedule 7 annexed thereto, and from their briefs, that the proper classification of the waters in question would, in their opinion, have been Class E, entitling them to continue to discharge sewage into the Mohawk River without treatment. The appellants seem to ignore completely the severe menace to public health posed by polluted waters, as well as the deleterious effects of pollution on neighboring waters and on the natural resources of the State, which were among the prime considerations that motivated the enact-men of the Act (see N. Y. Legis. Doc., 1947, No. 59, pp. 17-29). Furthermore, no section of the Mohawk River proper has been classified lower than C and, in fact, much of it has been classified as A and B. Of a total of 618 classifications of the waters of the Mohawk Drainage Basin, only three creeks were classified lower than D.

Appellants’ second contention is that the “ Appellate Division erred in holding that all questions of cost and fiscal consequences had been ‘ removed from the Board’s consideration ’ by the Legislature.” This is essentially the same argument as that just considered, and requires no further comment.

The third argument made by appellants, which they do not appear to have raised before the Appellate Division, is that

“ The statute delegates legislative power to the Board in violation of Article III, Section 1 of the State Constitution.”

This same question of constitutionality is involved in and disposed of in Matter of City of Utica v. Water Pollution Control Bd. (5 N Y 2d 164) decided herewith, and accordingly needs no further treatment here.

Appellant’s fourth and final contention is that the Board failed to hold a public hearing as required by law, failed to make any findings of fact to support its determination, and failed to accord the petitioners an opportunity to test by cross examination the evidence or reports considered by the Board in making its determination.” Subdivision 6 of section 1209 of the statute provides:

The adoption, alteration or modification of a classification of the waters of the state or the standards of quality and purity, above prescribed, shall be made by the board only after public hearing on due notice. ’ ’

Although subdivision 7 of section 1209 prescribes the contents of the required notice, nothing further is said as to the form and conduct of the hearing. The public hearing held in the instant case was conducted upon notice, as required by the statute. Appellants claim they did not receive notice of the hearing until the morning it was held. Respondent denies this, and Exhibits 8 and 4 show proof of service of notice upon appellants. In any case, appellants requested and obtained three extensions of time, with leave to submit whatever material they desired in support of their position, giving them more than six months to do so after the scheduled hearing.

At the hearing, members of the Board’s staff first explained the background and purposes of the Act, the classification system adopted by the Board and the engineering data which it had assembled. The meeting was then opened for suggestions and criticisms, and representatives from some eight community organizations presented their views. Counsel to the Department of Health explained to the assembled group that if they preferred not to make oral suggestions, they could file any prepared statements they had with the Board that night or communicate with the Board by mail. The classifications adopted by the Board were promulgated over a year later.

Appellants argue that the statutory provision for a public hearing contemplated that witnesses be sworn, testimony taken, opportunity for cross-examination given and findings of fact made, though no such requests were made at the time. Respondent concedes that these procedures were not followed at the hearing, but justifies the hearing as actually conducted on the ground that it was acting in a quasi-legislative capacity and it was not required to follow those procedures ordinarily associated with a quasi-judicial type of hearing. Moreover, as the Appellate Division noted, appellants did not request an adjudication of an issue germane to the classification as it affected their area; they simply requested and obtained extensions of time to file a memorandum and did not request an additional hearing until after the Board’s determination had been made.

We think it clear that the hearing as conducted by the Board accorded with the type of hearing contemplated by the Legislature. As noted, subdivision 6 of section 1209 of the statute, while requiring a public hearing prior to the adoption of water classifications, does not prescribe the form or the manner in which it is to be conducted. In contrast therewith, section 1208 (sulbd. 3, par. [b]), dealing with public hearings with respect to violations of the statutory provisions or of orders issued by the Board, authorizes the Board to

‘ ‘ hold public hearings, receive pertinent and relevant proof from any party in interest who appears before the board, compel the attendance of witnesses, make findings of fact and determinations, and assess such penalties therefor as are hereinafter prescribed ”.

By thus making specific provision for a quasi-judicial type of hearing with respect to violations of the statute or orders of the Board, in contrast with the general requirement of a public hearing in connection with adopting water classifications, the Legislature in effect distinguished between the different types of public hearings which the Board was required to hold, and impliedly sanctioned the informal type of hearing conducted here. A judicial type of hearing would, of course, be appropriate when punishing individual violations, while it would be manifestly inappropriate in connection with the adoption of a water classification affecting many municipalities, individuals and industries. (See Administrative Adjudication in New York, Benjamin, p. 6.)

The order appealed from should be affirmed, without costs.

Van Voorhis, J. (dissenting).

Article 12 of the Public Health Law (added by L. 1949, ch. 666) is designed to regulate what waters of the State are required to be pure, what waters may continue to be heavily polluted, and between these extremes to provide for the establishment of various grades of required purity or permitted pollution. This act applies to all of the waters in the State from tidewaters and the largest lakes and rivers to the smallest mountain rill. We are required on these appeals to rule upon questions of constitutionality and statutory construction affecting waters everywhere in the State.

Article 12 of the Public Health Law is an exercise of the State’s police power. It offers compensation to no municipality or other abutting property owner that may be adversely affected. Therefore no riparian rights of property owners can be taken nr impaired. The Act substantially provides that no riparian rights are intended to be affected (§§ 1243, 1260-1261). The Act is not confined in its operation to the abatement of public health nuisances. There is no finding that the discharge of sewage into the Mohawk River by the Town and the Village of Waterford, which is the subject of this proceeding, constitutes a public health nuisance. The contrary is implied in the record. The action by the Water Pollution Control Board now under review is not sought to be upheld on the basis that this is a public nuisance.

The police power extends to the abatement of public health nuisances. In aid of the conservation of water as a natural resource, it also extends to the regulation of the purity of water where there is no public nuisance so long as the riparian rights of municipalities or other property owners are not violated (People v. New York Carbonic Acid Gas Co., 196 N. Y. 421; Hathorn v. Natural Carbonic Gas Co., 194 N. Y. 326; Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61; Bandini Co. v. Superior Ct., 284 U. S. 8; 18 Am. Jur., Eminent Domain, § 162, pp. 793-794).

In deciding whether the Legislature intended that in making these classifications the Water Pollution Control Board should take into account the economic burden cast upon neighboring municipalities and property owners, and whether the authority to make such classifications of water pollution is a constitutional delegation of power to the Board, it is necessary to examine this subject in at least three aspects: (1) public health nuisances; (2) conservation of water as a natural resource where public health nuisances are absent in areas where riparian rights are not infringed and (3) destruction or impairment of riparian rights.

Before considering what authority the Legislature has delegated or could delegate to the Board, it is important to examine the extent of the police power of the State in these fields. Public nuisances can, of course, be enjoined without payment of compensation to riparian owners. As has been stated, there is no finding that this is such a case. The action taken by the Board, on the record before us, can only fall within the scope of the police power if it is directed to the conservation of water as a natural resource without the infringement of riparian rights of municipalities or other property owners. That would be equally true if the elassification of this portion of this river had been made directly by the Legislature instead of by the Board. The subject of riparian rights is complex, often varies according to the circumstances of the particular situation, and sometimes depends upon the financial investment of the riparian owner in the use which he makes of the water and on the expense of eliminating such use. The ‘ ‘ indispensable public necessity of cities and villages for drainage ” was held to pertain to the determination of riparian rights in Strobel v. Kerr Salt Co. (164 N. Y. 303, 320). The expense of altering the use of its water rights was held to be a factor in determining the extent of such rights in McCann v. Chasm, Power Co. (211 N. Y. 301) and expense is mentioned as a factor in considering riparian rights in a pollution case, where it was said in City of New York v. Blum (208 N. Y. 237, 243):

‘£ The question in a nutshell is whether it is reasonable for the defendant to divert the water from its natural channel and to return it, laden with the excreta of his domestic animals, when he can with slight trouble prevent such pollution. * * * He can * * * by a little labor prevent the pollution of the loaters of the stream.’’ (Italics supplied.)

Expense of this nature was recognized as a factor in determining riparian rights in Parker v. American Woolen Co. (195 Mass. 591); City of Battle Creek v. Gognac Resort Assn. (181 Mich. 241), and Aberdeen v. Lytle Logging & Mercantile Co. (58 Wash. 368). Expense cannot be ignored in all instances in determining where the police power ends and riparian rights begin, when the latter depend upon such complicated and varying circumstances as are described in the leading case of Strobel v. Kerr Salt Co. (164 N. Y. 303, supra).

The constitutionality of statutes limiting or controlling the exploitation or waste of natural resources, in the exercise of the police power, has received attention in the courts. (See, for example, annotations at 24 A. L. R. 307 and at 78 A. L. R. 834.) Bipariian rights 'are always considered in relation to the effect which the use of water by one riparian owner has upon other riparian owners. Somewhat similar factors are involved in percolating waters, where, as in the case of riparian owners, the use which is made of the water must be reasonable or it ceases to be a property right of the owner of the land (Forbell v. City of New York, 164 N. Y. 522, 526). The well-known Saratoga Springs cases establish the right of the State to prevent waste for the conservation of natural resources, without compensation to the owner of the land, where the use prevented by the State is not appurtenant to his ownership. That was held to be true even where the neighboring property owners were not objecting. The comprehensive opinion per Hiscook, J., in Hathorn v. Natural Carbonic Gas Co (194 N. Y. 326, supra) is applicable to article 12 of the Public Health Law which we are now considering. Having said in that case that the landowner had no vested right to the unreasonable use of underground waters, that opinion states (p. 343):

“ This being so, it was entirely proper for the legislature to adopt the provision in question defining and regulating the rights of persons desiring to use mineral waters like those at Saratoga Springs and calculated to prevent such use thereof as would either result in waste of the natural resources of the land to the injury of general and public interests, or in the unreasonable impairment of the rights of others entitled to draw from a common source.”

The context indicates that where the landowner has unreasonably impaired the rights of others to the water, he possesses no vested right to such use of the waters with the consequence that the State may prevent it in the interest of conservation without payment of compensation. But that such a rule is limited to instances where the property owner is making an unreasonable use of the waters was held in People v. New York Carbonic Acid Gas Co. (196 N. Y. 421, supra) where the Hathorn case was limited to that situation. The later decision held that the recital in the statute that its purpose was to prevent waste and impairment of the natural mineral waters of the State did not extend to the prevention of uses of the subsurface waters by the landowner which do not infringe the rights of other owners. To cope with such instances it became necessary to resort to the power of eminent domain by enacting a statute providing compensation to those affected by the taking (L. 1909, ch. 569; People v. New York Carbonic Acid Gas Co., supra, p. 436). The same principles prevailed in Lindsley v. Natural Carbonic Gas Co. (220 U. S. 61, supra) and formed the basis for the decision by the United States Supreme Court in the leading natural gas conservation case of Bandini Co. v. Superior Ct. (284 U. S. 8, supra). The circumstance that article 12 of the Public Health Law relates to the conservation of water as a natural resource does not authorize the Water Pollution Control Board to appropriate water rights if in fact and in law they belong to another. If the condition is not a public nuisance, and if the use which is made by the riparian owner of the water is reasonable so as to be within his riparian rights, such rights cannot be confiscated even for purposes of conservation. Conservation of natural resources was not enough to justify adding lands to the Forest Preserve except on payment of compensation to the owner (People v. Adirondack Ry. Co., 160 N. Y. 225, affd. 176 U. S. 335). Waters (with the exception, later to be mentioned, of the Hudson and Mohawk Rivers) cannot be diverted for public consumption without payment of damages to riparian owners (Smith v. City of Rochester, 92 N. Y. 463; see, also, Water Power & Control Comm. v. Niagara Falls Power Co., 262 App. Div. 460, affd. 289 N. Y. 353). Even the discharge of sewage may pertain to riparian rights under certain circumstances, as is indicated by Judge Vakk’s opinion in Strobel v. Kerr Salt Co. (supra) (Kyser v. New York Central R. R. Co., 151 Misc. 226). Since article 12 of the Public Health Law requires the Water Pollution Control Board to draw the line between what is a reasonable and an unreasonable use of the water by riparian owners as bearing upon the extent of riparian rights (e.g., § 1202, subd. [g]; § 1209), it cannot escape the necessity of considering on occasion the costs to riparian owners of changing the uses which they make of the water. The reasonableness of the use is an established standard for determining whether or not it belongs to the abutting owner as a riparian right. Costs of alteration, under the established rule, may affect what is a reasonable use.

Except for the special rule limiting the rights of owners along the Mohawk and Hudson Rivers (People ex rel. Loomis v. Canal Appraisers, 33 N. Y. 461; Gould, Law of Waters, § 246), it would in all probability have been necessary—unless the condition were found to be a public health nuisance—for the Board to have considered the expense of the construction of sewage disposal plants in the case of municipalities bordering the river, as a factor in determining whether or not the uses which they made of the water exceeded their riparian rights.

Even in the absence of vested rights in riparian owners, article 12 should not be construed as meaning that the Board must ignore entirely the economic burdens of its classifications. Assuming that riparian rights of owners along the navigable fresh rivers of New York State cannot be impaired without compensation, “ with the exception that the riparian owners upon the Mohawk River are not, by certain decisions, entitled to damages for any diversion or use of the waters of that river by the State ” (Glould, Law of Waters, supra, § 246), and that by reason of these decisions the Water Pollution Control Board was not obliged to consider whether the Town and Village of Waterford own any riparian property rights to the use of water, in my view article 12 of the Public Health Law still requires the expense of complying with the Board’s classifications to be regarded as a factor, although not necessarily the controlling factor, in arriving at its decision. Possibly no raw sewage should be allowed to be discharged anywhere into the Mohawk River, even if the contention of appellant municipalities proves to be correct that it would result in increasing their tax rates by 150%. We do not have before us the question whether any municipality should be allowed to empty sewage into the Mohawk River without treatment, but we do have to decide whether the Board has to take into account the costs imposed upon them by forbidding them to do so. How pure we may think that the Mohawk River ought to be is unrelated to the decision of this appeal. What we are required to decide is whether the Board has to give any attention to the costs resulting from classifications which it • imposes, which involves whether the Legislature intended that water pollution control should have priority over other public purposes where insufficient funds or credit are available to provide for them all.

According to a memorandum in evidence, by the Executive Secretary of the Board, classification of the degree of purity or pollution of all waters must be taken irrespective of what the cost might he to any municipality for complying with the adopted classes and standards.” The classifiation by the Board is the most vital step in its proceedings. The classification of waters determines what municipalities and other property owners are required to do in order to rectify whatever conditions of pollution the Board decides should be abated. The Board interprets its own powers to be such as to give priority to its water purification plans, even where no public health nuisance is involved, ahead of expenditures for schools, highways, urban redevelopment, social security, public hospitals and other aspects of public health, relief, even ahead of public water supply systems which are under the Water Power and Control Commission and are made secondary to the Water Pollution Control Board. That is true for the reason that no matter how pressing these other demands upon the public purse may be, they must be left out of effective consideration if the available funds or credit of municipalities have to be committed first to the dictates of the Water Pollution Control Board. If cost is not a limiting factor in water pollution control, which it is not according to the legal position of the Board, cost does limit the full realization of all of these other commendable public purposes which also have their advocates and disciples. They must all take second place if there is not enough money to go around. The Joint Legislative Committee on whose report this legislation was adopted had no such idea, as shown by the comment in its report that municipalities in the State will include some whose fiscal condition will not ‘ ‘ permit them to issue bonds for necessary public works, including sewers and sewage treatment works ’ ’ and others ‘ ‘ which still have financial ability to undertake the required sanitation work but which have other improvements scheduled or contemplated, which they must undertake. ’ ’ The committee further stated:

6 ‘ An analysis of all the municipalities which fall into the above categories would reveal information of great value and importance to the proposed pollution control board, and would serve as the basis of a constructive approach to the fiscal problem.” (N. Y. Legis. Doc., 1949, No. 51, p, 36.)

Such fiscal information could be of no value or importance to the Board if the statute requires the Board to disregard it.

No reason is apparent on account of which the statute should not be construed according to its language in harmony with these comments in the report of the Legislative Committee which drafted it and recommended its adoption. Section 1209 states that it is recognized that, due to variable factors, no single standard of quality and purity of waters is applicable to all waters of the State or to different segments of the same waters, and that in order to attain the objectives of the statute, the Board shall group the designated waters of the State into classes. Such classification, it is provided, “ shall be made in accordance with considerations of best usage in the interest of the public” and with regard to enumerated considerations. Among these considerations are the uses which have been made, are being made or may be made of the waters “ for transportation, domestic and industrial consumption, bathing, fishing and fish culture, fire prevention, the disposal of sewage, industrial waste and other wastes, or other uses within this state ” and under certain circumstances outside of the State. The extent of present defilement or fouling of the waters is to be considered as a factor and qualities and properties of water are to be prescribed that are adapted to ‘ ‘ the use of such waters for domestic, commercial, industrial, agricultural, recreational or other reasonable purposes ”. The character of the district bordering the waters is to be considered, and its peculiar suitability for the particular uses, ‘ ‘ and with a view to conserving the value of the same and encouraging the most appropriate use of lands bordering said waters, for residential, agricultural, industrial or recreational purposes ”. This is to be done according to “a general comprehensive plan” and ‘ ‘ recognizing different requirements for separate waters and for different segments of the same waters ”, and the standard or standards to be applied signify such measure of purity or quality for any waters “in relation to their reasonable and necessary use, as may be established by the board ” pursuant to this article.

These standards prescribed by the Legislature cannot be applied without consideration by the Board of costs to municipalities or other abutting owners resulting from compliance with, the adopted classes and standards as a measure of purity. Clearly this idea is conveyed by these provisions. The object, to be sure, is to attain the maximum degree of purity which is desirable or practical having regard to all of these circumstances, but no uniform standard of purity is formulated or ordered by the Legislature. On the contrary, it is specifically stated that varying standards shall be applied, depending on the uses which have been made or may be made of the waters for many purposes, including the disposal of sewage or industrial waste and the extent of present defilement or fouling of the waters. The standards to be applied by the Board are such as are consistent with the reasonable uses of the water, in the interest of the public, which includes a view to the character of the district bordering the waters, and its peculiar suitability for particular purposes and the conservation of its value. There is not a word here to warrant ignoring the cost of eliminating pollution as one of the elements entering into the decisions of the Board in making these classifications. It may well be that cost would not be taken into account if the Board has made a finding based on evidence that a particular condition constitutes a public health nuisance, but that is not this case nor the usual case.

The basis for the conclusion that in adopting classifications of water purity the Board is not required to consider or give any weight to fiscal considerations is mainly section 1224 of article 12 of the Public Health Law. This section empowers the - Board to grant an extension not in excess of five years if it finds it to be impossible or impracticable to comply with the prescribed standards of purity because of financial inability ' to construct the necessary sewage treatment works or provide other means of disposal of waste. Extentions of time beyond this five-year period may be granted if the person involved shows to the satisfaction of the Board that he. has diligently tried to comply with the orders of the Board. In all proceedings under section 1224, the burden of proof is on the person applying for postponement to show that it is not possible to comply with the Board’s classifications. This section contains no token of an intention to prohibit the Board from considering the economic burden in arriving at its classifications in the first place, nor to dispense with its doing so as a part of the reasonable exercise of judgment required of it in establishing these standards of purity, fío extension even for five years or less can be obtained under this section if the necessary sewage treatment works or other means of disposal can be constructed within the financial ability of the municipality, even if that necessitates the deferment of other public projects which have an equal claim on the resources of the community. That contradicts the further declaration by the Joint Legislative Committee in 1950 (after this legislation had been adopted) that

“ In a balanced fiscal program, the municipal needs for sewage treatment construction must be integrated with the other public improvements required by each community. While sewage treatment cannot be overstressed at the expense of other public works, neither can it be overlooked.5 ’ (N. T. Legis. Doc., 1950, fío. 74, pp. 173-174.)

It seems that the interpretation placed by the Board upon its own powers is not in accord with the conception of the statute by the Joint Legislative Committee which recommended this legislation. As we have seen, earlier annual reports of the committee also stressed the importance of fiscal factors in accomplishing the program. The possibility of exemption of pollution elimination bonds from debt limits or authorization of sewer rents could not have been regarded as a substitute for considering the factor of expense by the Board before requiring the construction of such public improvements. Exemption from debt limits does not create credit nor imply an intention to justify the exhaustion of credit by municipalities for one purpose without considering the urgency of the fulfillment of other municipal purposes. It does not integrate the municipal needs for sewage treatment with other public improvements which the community requires. Erasing debt limits or authorizing sewer rents could not have been expected alone to solve these financial problems or to avert the necessity for considering them in ordering classifications. If the resulting economic burden is to be disregarded by the Board in classifying standards of purity or pollution of waters, the Board would have jurisdiction to direct (and might consider its duty to be to direct) that the Hudson River, for example, should be made simon-pure. Such a result might well be desirable except that it would cost too much. I think that the Legislature did not intend to empower the Board to do that, even "though the Board might stay its mandated classification indefinitely for economic reasons. One should not readily conclude that the Legislature has directed the Board to order Utopia, but postpone its realization until the Millenium. If such an illustration seems overdrawn, that is because it seems absurd to think that the Board would make such a classification of the Hudson River. But this is absurd only if it is taken for granted that the Board would be influenced by the huge cost of such a project and would decline so to classify the Hudson River on account of the expense. The record indicates that the Board did postpone the classification of another portion of the canalized Mohawk River on account of the cost of treatment of industrial waste. No suggestion has been made by anyone, least of all in this dissenting opinion, that the Board has been actuated in what it has done by anything but the best motives, and the record shows that in at least one instance the Board has had and I believe it would have the common sense in administering this law to disregard its own legal theory that in making classifications costs are to be ignored. The Legislature did not intent to permit the Board to consider or ignore cost factors as it chose. Either such factors must be considered or they must be left out of consideration. They may, of course, be considered and overruled where not of controlling importance. A fiction that fiscal matters are irrelevant when they are really being acted upon would prevent the parties from presenting the facts upon which their cases depend, and would require the Board to obtain its information through outside channels. It would also limit the court review of determinations by the Board which the Legislature provided by section 1244, inasmuch as there cannot be intelligent review unless the ostensible reasons for decision are the real reasons.

It is the contention of the Board a.s appears from respondent’s brief that the establishment of standards of purity and quality of waters and the classifiation of the waters of the .State is the exercise of a quasi-legislative function, and is not reviewable as a quasi-judicial determination and that findings of fact need not be made in respect thereto. But section 1244 states that all orders or determinations of the Board shall be subject to review as provided in article 78 of the Civil Practice Act, and provides that for purposes of review the petition to the court shall state ‘ ‘ that the classification of waters, standards of quality and purity thereof, or any finding, determination, decision or order of the board is illegal, in whole or in part ” and shall specify the grounds of the illegality. (Italics supplied.) By this express language the Legislature provided that classifications of waters should be reviewable in court. This is understandable since it is the classification (not the subsequent formal orders to be served on municipalities) which determines that sewage treatment plants must be constructed by appellants. If that cannot be reviewed, review of the subsequent order is an empty form.

It is apparent, for example, that a classification of the waters of the State is quasi-judicial insofar as it may be based upon a determination that the existing condition constitutes a public nuisance, or, if it does not constitute a public nuisance, that it involves or does not involve infraction of riparian rights. It is reviewable in court if the record indicates, as it does here, that even though no public nuisance or riparian rights are involved, the Board has not been actuated by a consideration of all of the factors which the law requires in arriving at its decisions concerning classification. A rate-making case was recently remanded to the Public Service Commission, although rate making has been denominated a quasi-legisl'ative function, for the reason that the commission in arriving at its decision failed to take into account all of the necessary factors required by law (Matter of New York Tel. Co. v. Public Service Comm., 309 N. Y. 569).

The Water Pollution Control Board made no findings of fact, which are required by section 1208 (subd. 3, par. [b]) and are necessary for the purposes of intelligent judicial review and to assure the parties to the litigation that decisions have been reached on the evidence (Matter of Elite Dairy Prods, v. Ten Eyck, 271 N. Y. 488, 498; Matter of New York Water Service Corp. v. Water Power & Control Comm., 283 N. Y. 23, 30, 32; Matter of New York State Guernsey Breeders Co-op. v. Noyes, 284 N. Y. 197, 204-205; Matter of Dusinberre v. Noyes, 284 N. Y. 304, 308; Matter of Collins v. Behan, 285 N. Y. 187; Mason v. Lory Dress Co., 277 App. Div. 660; Benjamin, Administrative Adjudication in the State of New York [Report to Governor Lehman, 1942], pp. 251-253; see, also, Florida v. United States, 282 U. S. 194). These decisions hold that it was incumbent on the Board to make findings showing that facts have been found which are necessary to give the Board jurisdiction to make the classifications of water involved in its determination, and that, where such findings of fact are lacking, the matter should be remitted for the purpose of making such findings. Without these findings it is impossible to decide whether the conclusion reached is in accordance with law.

The contention of the Board that the classification of standards of purity and quality of the waters of the State is wholly a legislative function does not strengthen its position that legislative power has not been delegated in violation of the Constitution (Packer Collegiate Inst. v. University of State of N. Y., 298 N. Y. 184; Matter of Levine v. O’Connell, 275 App. Div. 217, affd. 300 N. Y. 658; Matter of Fink v. Cole, 302 N. Y. 216, 225; Darweger v. Staats, 267 N. Y. 290; Panama Refining Co. v. Ryan, 293 U. S. 388; Schecter Cory. v. United States, 295 U. S. 495). If the jurisdiction of the Water Pollution Control Board were held to be subject to the legal standards that I have outlined as being intended by the statute, I would agree that there has been a valid delegation of authority under the opinion written by Judge Fuld in Matter of City of Utica v. Water Pollution Control Bd. (5 N Y 2d 164), decided herewith. The trend of the times and of the decisions requires the delegation of power to boards and commissions in fields where the circumstances of particular cases are too varied and complicated for the Legislature to act separately in each situation. Nevertheless where power is conferred upon a board or commission the Legislature cannot constitutionally authorize such a body to exercise a deformed judgment founded upon some but not all of the relevant factors which are necessary to a rational determination upon the subject. The cost of construction of municipal sewage disposal plants or plants for the treatment of industrial waste need not be the deciding factor in arriving at classifications of water by the Board, and in cases of public health nuisances (which it does not appear that this is) such costs may not be a factor at all (Whalen v. Union Bag & Paper Co., 208 N. Y. 1). But except where public health nuisances are involved, a rational judgment cannot be formed without counting the cost. If the Legislature were confronted with legislating on what should be the degree of purity of the Mohawk River in the vicinity of Waterford, every relevant factor would be before it for consideration, and it would be presumed to have taken into account all facts and factors bearing upon the situation (Noyes v. Erie & Wyoming Farmers Co-op. Corp., 281 N. Y. 187, 195; Szold v. Outlet Embroidery Supply Co., 274 N. Y. 271, 278). It may well be that the Legislature in such case would not regard the expense as warranting the prevention of such a classification, but that phase of the question would be before the Legislature which would ascribe to it such weight or importance as it might deserve in the particular case. If cost were not deemed to be a controlling consideration respecting the Town and Village of Waterford, it might weigh more heavily in the case of waters or watercourses elsewhere in the State. Nevertheless I think that an act of the Legislature would be an unconstitutional exercise of its own power if it attempted to legislate with regard to the purification of waters, water supply, education, hospitals, highways, urban redevelopment, social security or other public works or projects at the same time certifying that it had not considered all relevant factors but had ignored the costs of ■such projects and had given no thought to how they should be borne or how they would affect the people of the State. It is not too much to say that it would be an invalid exercise of the legislative power vested in the Senate and Assembly by section 1 of article III of the State Constitution if the Legislature were to attempt to circumscribe its own power in these respects by the adoption of a self-denying ordinance eliminating from the legislative judgment the consideration of factors which cannot be eliminated from the formation of a reasonable judgment upon the subject. If the Legislature cannot thus hobble its own deliberations, it cannot do the same to the deliberations of a board or commission. No valid enabling act can compel a board to exercise a warped and unbalanced judgment by directing it to eliminate relevant factors from consideration which cannot rationally be eliminated. The Legislature cannot delegate power to a board to solve a problem while looking into only part of it.

The language of article 12 of the Public Health Law does not require this narrow, and, as it seems to me, strained interpretation, but if the Board insists on circumscribing its deliberations and if the courts construe the statute as commanding this, then the Act is an unlawful delegation of authority. The Legislature has not reserved power in itself to consider these fiscal factors except by amending this legislation, and the Board may not consider them under such an interpretation except to defer classifications that have already been adopted and been given priority over other municipal projects. In short, under this interpretation, these fiscal factors are left to be considered by nobody in making these water classifications. It is impossible to form a rational or balanced judgment on these matters if -fiscal considerations must be totally ignored. On the record before us the members of the Board in administering this statute are prevented from using their own good judgment by a -legal ruling that in arriving, at -their conclusions they cannot count the cost. Whether in some instances they would arrive at the same conclusions after counting the costs is not for the court here to determine. It is inconceivable that the Board would do so in all'instances, yet this construction of the statute makes it mandatory.

- If this statute is so construed and is valid, then similar action can be taken in regard to the numerous other functions of government in other fields that are regarded as important and are energetically supported by other equally public spirited groups in the community. If the expense of all such projects can be left out of account, and each governmental function, however important, were to be given its head without being-limited by this practical but unpopular hindrance, the administration of governmental projects of all kinds, instead of becoming integrated as the Joint Legislative Committee said, would be thrown into chaos. Not only would this render it impossible, in the language of the committee, ‘ ‘ to clarify the position which pollution control must play in a comprehensive statewide public improvements program ” (N. Y. Legis. Doc., 1950, No. 74, pp. 173-174), but the record shows that no comprehensive plan for pollution control of the Mohawk River has been formulated as the statute requires (cf. need for a comprehensive plan in zoning cases, Buckley v. Fasbender, 1 N Y 2d 681).

In summary, this case docs not involve pollution in such degree or under such circumstances as have been found to constitute a public health nuisance, nor is there presented a question of the infraction of riparian rights in the absence of rights of riparian owners along the Mohawk River to damages for diversion or use of the waters (People ex rel. Loomis v. Canal Appraisers, 33 N. Y. 461, supra, followed in Williams v. City of Utica, 217 N. Y. 162, 168-169; Gould, Law of Waters, § 246). I have assumed that the police power extends to the conservation of water as a natural resource for future expansion in population and industrial use, where vested rights of riparian owners are not impaired, and that the purpose of this classification goes beyond improving the fishing in a few places in the Mohawk River. Nevertheless, even though in this instance no vested riparian rights of municipalities or other property owners appear to be involved, the power to regulate the purity of water for its conservation as a natural resource is not unlimited and has been delegated to the Water Pollution Control Board by the Legislature subject to its exercise in accordance with certain prescribed canons of judgment which include among other elements consideration of the incidence of the economic burden resulting to riparian owners from classifications of water by the Board. Finally it is my conclusion that unless the Board is authorized by this legislation to consider (not necessarily to be controlled by) the economic burdens resulting from these classifications, this would necessarily distort the judgment of the Board in many cases by compelling it to act without considering all of the material factors, and would give water purification projects priority over other desirable purposes even where no public health nuisance is involved and without integrating their necessity or desirability. In that case the Legislature has acted in excess of its power contrary to section 1 of article III of the State Constitution. The Legislature did not, in my belief, intend to grant such priority. However important the conservation of water resources may be, it cannot be accomplished in my opinion by a statute construed so as to cause the Board to exercise a mutilated judgment by charging it with responsibility for the whole problem while allowed to think about only part of it.

This opinion, it is perhaps unnecessary to add, is not intended in criticism of the Water Pollution Control Board or of its Executive Secretary or Legal Counsel. But the case is an instance of a tendency, unhappily too familiar, of hoards and commissions consisting of public spirited members and formed for laudable purposes being drawn as by a law of nature into becoming separate, largely independent, miniature governments ” each with “ its own constituency, ambitions, and policies” (Robert H. Jackson: The Supreme Court in the American System of Government, p. 50). It is but a mild limitation on the functions of the respondent if, without curtailing its powers, it is required to examine into the costs which it •imposes as I believe the Legislature intended.

The order appealed from should be reversed and the proceeding remitted to the Water Pollution Control Board for rehearing in accordance with this opinion.

■ .Chief Judge Conway and Judges Desmond, Dye, Fuld and Burke concur with Judge Froessel ; Judge Van Voorhis dissents in an opinion and votes to remit the matter to the Water Pollution Control Board for a rehearing in accordance with his dissenting opinion herein.

Order affirmed.


author:
      Per Curiam.
     Desmond, J. (dissenting).

text:
    Stahl Soap Corporation, Respondent, v. City of New York et al., Appellants.
    Argued October 7, 1958;
    decided January 22, 1959.

      Peter Campbell Brown, Corporation Counsel (Irving Genn, Harry E. O’Donnell and Benjamin Offner of counsel), appellant in person and for City of New York and others, appellants.
    I. The resolution of the Board of Estimate discontinuing a portion of Stanwix Street contains a sufficient statement of the public necessity" for the closing. The courts may not look beyond it to entertain allegations impugning the motives and purposes of the board in the exercise of its legislative powers. (Matter of City of New York [84th St.], 189 App. Div. 315; Kaskel v. Impellitteri, 306 N. Y. 73, 347 U. S. 934; Matter of City of New York [Ely Ave.], 217 N. Y. 45; McCabe v. City of New York, 213 N. Y. 468; Matter of Asness v. City of New York, 5 Misc 2d 779, 4 A D 2d 677; Waterloo Woolen Mfg. Co. v. Shanahan, 128 N. Y. 345; Bleecker Luncheonette v. Wagner, 286 App. Div. 828, 309 N. Y. 1029; Matter of Mayor, 28 App. Div. 143, 157 N. Y. 409; Matter of City of New York [Gillen Place], 304 N. Y. 215.) II. The street having been found unnecessary, the public interest was served by its closing. Moreover, the action of the Board of Estimate Avas in accord with a general plan for the improvement of the area. (Matter of Mayor, 28 App. Div. 143; Matter of City of New York [Gillen Place], 304 N. Y. 215; State v. Elizabeth, 54 N. J. L. 462.) III. The complaint fails to show facts constituting illegality and waste, and it does not allege fraud or corruption. It therefore lacks the necessary elements of a taxpayer’s action. (Altschul v. Ludwig, 216 N. Y. 459; Kittinger v. Buffalo Traction Co., 160 N. Y. 377; Talcott v. City of Buffalo, 125 N. Y. 280; Western N. Y. Water Co. v. City of Buffalo, 242 N. Y. 202; Campbell v. City of New York, 244 N. Y. 317; Kelly v. Merry, 262 N. Y. 151.)

      Walter H. Liebman, Herbert Robinson and Julian S. Perlman for Liebmann Breweries, Inc., appellant.
    I. The power of the Board of Estimate to close a street or portion thereof being-clear, its exercise of the power in the case at' bar cannot be reAÚewed on the basis of the complaint herein. (Bacon v. Miller, 247 N. Y. 311; Kaskel v. Impellitteri, 306 N. Y. 73; Davidson v. City of Elmira, 180 Misc. 1052, 267 App. Div. 797, 292 N. Y. 723; Waterloo Woolen Mfg. Co. v. Shanahan, 128 N. Y. 345; Talcott v. City of Buffalo, 125 N. Y. 280; McCabe v. City of New York, 213 N. Y. 468; Matter of City of New York [Ely Ave.], 217 N. Y. 45; Western N. Y. Water Co. v. City of Buffalo, 242 N. Y. 202; Campbell v. City of New York, 244 N. Y. 317; Bleecker Luncheonette v. Wagner, 286 App. Div. 828, 309 N. Y. 1029.)

      Louis N. Field for respondent.
    I. The complaint states facts sufficient to constitute a good cause of action. II. The city does not have “full power to discontinue and close streets.” (Browne v. City of New York, 241 N. Y. 96.) III. The city holds its streets in trust for the general public. (People v. Grant, 306 N. Y. 258; Matter of Smith v. Gagliardi, 286 App. Div. 873; Peterson v. City of New York, 260 N. Y. 156; Brooklyn City R. R. Co. v. Whalen, 191 App. Div. 737, 229 N. Y. 570; American Dock Co. v. City of New York, 174 Misc. 813, 261 App. Div. 1063, 286 N. Y. 658; Bradley v. Degnon Contr. Co., 224 N. Y. 60; Matter of Mayor, 28 App. Div. 143, 157 N. Y. 409; Browne v. City of New York, 213 App. Div. 206, 241 N. Y. 96.) IV. The city has been delegated only limited powers over its streets. V. The city has no power to close portion X of Stanwix Street under section E15-3.0 of the Administrative Code. (Schieffelin v. Hylan, 236 N. Y. 254; People ex rel. Failing v. Commissioners of Highways, 53 Barb. 70; Matter of Byers, 72 N. Y. 1; Denihan Enterprises v. O’Dwyer, 302 N. Y. 451.) VI. If the city did not act within the limits of section E15-3.0 of the Administrative Code, its action was wholly illeg’al and ultra vires. (People ex rel. Hotchkiss v. Supervisors, 65 N. Y. 222; People ex rel. City of Olean v. Western N. Y. & P. Traction Co., 214 N. Y. 526.) VII. The complaint, being predicated on illegality, need not allege or show fraud or corruption. (Talcott v. City of Buffalo, 125 N. Y. 280; Kaskel v. Impellitteri, 306 N. Y. 73.) VIII. The complaint, with the proceeding’s before the Board of Estimate and City Planning Commission incorporated therein, still sets forth a good cause of action. (Matter of City of New York [Ely Ave.], 217 N. Y. 45; McCabe v. City of New York, 213 N. Y. 468; Pocantico Water Works Co. v. Bird, 130 N. Y. 249; Board of Black Riv. Regulating Dist. v. Ogsbury, 203 App. Div. 43, 235 N. Y. 600; Waterloo Woolen Mfg. Co. v. Shanahan, 128 N. Y. 345; Altschul v. Ludwig, 216 N. Y. 459; Good Humor Corp. v. City of New York, 290 N. Y. 312; Matter of City of New York [Gillen Place], 304 N. Y. 215.)
   Per Curiam.

In this taxpayer’s action to nullify the closing and discontinuance of a single interior block of Stanwix Street, which is five blocks long, extending from Bushwick Avenue to Flushing Avenue in Brooklyn, and for related relief, we agree with the Appellate Division that the complaint as a pleading, read in the light of the exhibits, states a cause of action.

In a proper case, such an action is authorized (McCutcheon v. Terminal Sta. Comm., 217 N. Y. 127, 137, 141). Redress may only be had, however, when the official acts complained of are found to be corrupt, fraudulent, done in bad faith (McCutcheon v. Terminal Sta. Comm., supra, p. 148), or constitute a waste of .public property in the sense that they represent the use of Such property “for entirely illegal purposes ”, or where “ there is a total lack of power in defendants, under the law, to do the acts complained of” (Kaskel v. Impellitteri, 306 N. Y. 73, 79, cert. denied 347 U. S. 934; Kittinger v. Buffalo Traction Co., 160 N. Y. 377; Altschul v. Ludwig, 216 N. Y. 459; General Municipal Law, § 51).

It is elementary that the State’s power with respect to the discontinance of streets is plenary, and may be exercised directly by the Legislature or delegated by it to a subordinate governmental agency (Fearing v. Irwin, 55 N. Y. 486, 490; 25 Am. Jur., Highways, §' 118). Such power was granted by the Legislature to the City of New York in subdivision a of section E15-3.0 of the Administrative Code of the City of New York. This section authorizes the city to close a street when deemed “necessary in order to more effectually secure and preserve the regularity and uniformity of the streets therein, or where other public necessity requires the closing ”.

The complaint alleges that the closing of the portion of Stanwix Street, a busy and active street in use for over 90 years and an important link in the highway system of the city,, was not for the purpose of more effectually securing and preserving the regularity and uniformity of the streets of the City of New York nor for any other public necessity; that the agreements between the city and the abutting property owner to effectuate such closing were not entered into in good faith, and that the city’s action was unlawful and a waste of its property.

In support of its allegations, plaintiff points to the Journal of Proceedings of the Board of Estimate of the City of New York, which discloses that the board acted upon reports of its Chief Engineer and the Chairman of the Planning Commission. The Chief Engineer reported that the purpose of closing this one interior block of Stanwix Street, which is 50 feet wide and concededly in use for over 90 years, was to permit the release of the city’s interest in the street to the abutting property owner ‘ ‘ that they may assure themselves of the exclusive use of that area for necessary parking and for access to their property ”, and recommended the institution of a closing proceeding “contingent” upon the board’s prior acceptance of agreements with the abutting owner. The Chairman of the Planning Commission reported that the closing of the street was provided for “in order that it may he released to” the abutting property owner “ for industrial expansion ” and inasmuch as said owner desires “ to consolidate its holdings ”.

These undisputed statements, appearing in the minutes of the Board of Estimate, and upon which the board acted, read with the complaint, would seem on their face to contradict the statements of the board that the closing was “in the public interest ” and that the street was “ not essential ”, and, without more, tend to bear out the allegations of the complaint to the effect that the city’s action was unlawful, and that the conditions for the exercise of the board’s power were not present in this case. As Judge Desmond stated in the Kashel case (306 N. Y. 73, 80, supra),

“ One can conceive of a hypothetical case where the physical conditions of an area might be such that it would be irrational and baseless to call it substandard or insanitary [in this case to say that the closing was “ in the public interest ” and that the street was “ not essential ”], in which case, prohahly, the conditions for the exercise of the power would not be present.”

While there is no objection to an owner acquiring title to abutting land in a street “Whenever the city shall have any right, title or interest ” (emphasis supplied) in a street that has been discontinued — indeed, section 383-2.0 of the Administrative Code so provides — a municipality is without power arbitrarily to vacate a street or a part thereof for the sole purpose of benefiting an abutting property owner, and without due regard for the enabling statute (see McCutcheon v. Terminal Sta. Comm., supra, pp. 142-144; 2 McQuillin, Municipal Corporations [3d ed], pp. 131-132; 25 Am. Jur., Highways, § 120; 3 Dillon, Municipal Corporations [5th ed.], § .1160, p. 1838; Elliott, Municipal Corporations [2d ed.], p. 79).

McDonald v. Board of Street Comrs. of Boston (268 Mass. 288), cited in the dissenting opinion, clearly recognizes the exception to the rule that general power to discontinue a public street is vested in the city, for there it was expressly pointed out (p. 294): “So long as it [the board] acts honestly, without abuse of discretion, within the scope of the delegated power and governing principles of law, its decisions are not open to reexamination by the courts.” (Emphasis supplied.)

It may well be that the Board of Estimate acted within its powers in closing the portion of Stanwix Street affected; that upon a trial plaintiff will be unable to establish its cause of action; and the city may demonstrate that there is factual basis for its determination that the street was discontinued because, in the language of the statute, “public necessity requires the closing ’5 and that the closing was not for the sole benefit of the abutting property owner.. We are not now deciding the case upon the merits, but merely holding that the complaint, the allegations of which we must accept as true, read in the light of the exhibits, sufficiently states a prima facie cause of action.

The order appealed from should be affirmed, with costs to abide the event, and defendant given 20 days in which to answer the complaint; the question certified to us should be answered in the affirmative.

Desmond, J. (dissenting).

Since the closing of a public street is a legislative function, this complaint states no cause of action. No citizen or taxpayer can require the courts to decide whether the legislative decision is prudent or in the public interest or whether the legislators’ motives are base or good. Intrusion of o.ur courts into this legislative domain is unprecedented, contrary to settled public policy and not protective of any private right.

Of course, plaintiff says that this closing was without warrant of law but his own pleading cites the statute (Administrative Code of City of New York, § E15-3.0) which delegates this legislative power to the City of New York (see Fearing v. Irwin, 55 N. Y. 486, 490). And although he says that this particular closing is not in the public interest, the Board of Estimate by a nonreversible legislative finding has determined that it is “ in the public interest.” The power to determine such “ questions of necessity or expediency ” is “ political, not judicial, in its nature ” (Matter of City of New York [Ely Ave.], 217 N. Y. 45, 57). Exactly as in Kaskel v. Impellitteri (306 N. Y. 73, 80, cert. denied 347 U. S. 934), “ the situation here actually displayed is one of those as to which the Legislature has authorized the city officials, including elected officials, to make a determination, and the making thereof is simply an act of government, that is, an exercise of governmental power, legislative in fundamental character, which, whether wise or unwise, cannot be overhauled by the courts.” As we said in Kaskel (p. 79), “ since no corruption or fraud is charged * * * a taxpayer, cannot succeed in such a suit, unless there is a total lack of power in defendants, under the law, to do the acts complained of” (see 11 McQuillin, Municipal Corporations [3d ed.], p. 126). In Kaskel, the City Planning Commission had reported to the Board of Estimate and the board had found that the area involved was 1 ‘ substandard and insanitary ’ ’ (General Municipal Law, § 72-lc). In the present case the same Planning Commission officially informed the Board of Estimate that the part of Stanwix Street to be eliminated “ is not essential for frontage, traffic, or any other public purpose.” As we understand plaintiff’s argument and the majority opinion here, the position taken is that this closing could not be “in the public interest” since a report to the board by a City Engineer had recited that the “ purpose ” was to convey the bed of the closed street to respondent Liebmann, owner of the abutting land on both sides of the block, for Liebmann’s own use. Any trial of such an issue must of necessity violate the rule against judicial inquiry into the motives of legislators acting within their powers and must destroy the conclusive presumption that the motives were correct ones (see Waterloo Woolen Mfg. Co. v. Shanahan, 128 N. Y. 345, 359; Matter of City of New York [Ely Ave.], 217 N. Y. 45, 58, 59, supra). And, once the legislative determination of “ public interest” has been made, a transfer for adequate consideration of the bed of the vacated street to an abutting owner is normal and proper. We took judicial notice in Matter of City of New York (Gillen Place) (304 N. Y. 215, 221) that “ street closings usually result in the ultimate appropriation of the land to private ownership ’

For more than 60 years (Matter of Mayor of City of New York [Deering], 28 App. Div. 143, affd. 157 N. Y. 409) it has been settled that on closing a street “ The city of New York, as owner of the land, may use it for corporate purposes, or, unless it is required for such use, it may sell or dispose of it in the same way as an individual owner might do ” (28 App. Div. 153). In Matter of Mayor of City of New York (Deering) (supra, p. 154), the Appellate Division quoted with approval from Meyer v. Village of Teutopolis (131 Ill. 552) as follows: “ ‘ Nor does it seem material that the vacation is made with the view or intention of vesting the adjoining proprietors with the ownership of the land embraced within the street. That merely goes to the motive by which the act of vacation is performed, and in that, as in all legislative acts, the motives by which the legislative body is actuated are immaterial and cannot be inquired into ’ ” (see, likewise, the leading case of MacDonald v. Board of Street Comrs., 268 Mass. 288). Yet we are here authorizing a trial to discover an intent which is not only undisputed but immaterial as well, since the fact that the vacation of a street is at the instance of an abutter, as it usually is, proves nothing at all (11 McQuillin, Municipal Corporations [3d ed.], pp. 133-134).

A notable decision which disposes of all plaintiff’s contentions is MacDonald v. Board of Street Comrs. (268 Mass. 288, supra). The simple, workable rule has always been in New York as elsewhere that legislative control of the opening and closing of streets is plenary unless there be a taking of private land or a denial of access to an abutter (Smith v. City of Boston, 61 Mass. 254; People v. Kerr, 27 N. Y. 188, 192; Egerer v. New York Cent. & Hudson Riv. R. R. Co., 130 N. Y. 108, 111; Van Aken v. State of New York, 261 N. Y. 360; Dwornik v. State of New York, 283 N. Y. 597; Coffey v. State of New York, 291 N. Y. 494). Mere inconvenience gives no right of action (Reis v. City of New York, 188 N. Y. 58, 67, 68). All of this is set forth with clarity and authority in Municipal Law by Rhyne (p. 439, §§ 18-30).

The much-stressed fact that this closing is of one block only of the street means nothing since the Administrative Code of the City of New York (§ E15-3.0) authorizes the city to close streets “ in whole or in part ” and several of the leading cases cited herein (see Reis v. City of New York, supra), deal with such partial closings.

The order appealed from should be reversed, the motion granted, the certified question answered in the negative, and the complaint dismissed, with costs in this court and in the Appellate Division.

Chief Judge Conway and Judges Froessel, Van Voorhis and Burke concur in Per Curiam opinion; Judge Desmond dissents in an opinion in which Judges Dye and Fuld concur.

Order affirmed, etc.