It is the established law by numerous decisions of this court that in the exercise of the power of eminent domain the opinion of the legislature or the tribunal upon which is conferred power to determine the questions of necessity or expediency in the acquirement of private property for public use is political, not judicial, in its nature. ( People v. Smith, 21 N.Y. 595; Matter of Townsend, 39 N.Y. 171; Matter of Fowler, 53 N.Y. 60; Matter of Union Ferry Company, 98 N.Y. 139; City of Buffalo v. Pratt, 131 N.Y. 293; Matter of City of New York, 190 N.Y. 350-357.) In Matter of City of New York, Chief Judge CULLEN succinctly stated the rule as follows: "It is the settled law of this state that the character and quantity of the estate in lands to be acquired for public use rests wholly in the determination of the legislature."
Nor is the power granted to the superintendent (to acquire any and all property he deems necessary) inconsistent with the exemption. It is the usual general power delegated by the Legislature, either expressly as in this case, or impliedly, to implement selection of a site ( Matter of Townsend, 39 N.Y. 171, 174; Matter of Fowler, 53 N.Y. 60; Matter of City of Rochester v. Holden, 224 N.Y. 386, 391; Matter of Hicks Development Corp. v. Village of Lawrence, 282 App. Div. 1048, affd. 306 N.Y. 922). The 1927 statute has not been repealed.
In People v. Fisher ( 116 App. Div. 677) in the prevailing opinion it is said: "It is the general rule that the necessity for exercising the right of eminent domain is a question of a political rather than of a judicial nature; that its determination rests with the Legislature, and the courts have no power to review it, and that the Legislature may delegate the power to public officers, whose determination is likewise conclusive upon the courts. ( Matter of Fowler, 53 N.Y. 60; People v. Smith, 21 id. 595.) And so whether it will take the title in fee or simply acquire an easement is likewise a question of that character.
Moreover, insofar as these complaints allege that the premises above the 246 elevation are "useless" and "unnecessary" for navigation, commerce or hydroelectric purposes, it must be held they are insufficient since the necessity for an appropriation of lands for public use is a legislative function, and the instrumentality in which it reposes such powers is the sole judge of the necessity, in lieu of any provision to the contrary. ( People v. Smith, 21 N.Y. 595, 598; Matter of Fowler, 53 N.Y. 60, 62; People v. Fisher, 190 N.Y. 468, 477; Matter of City of New York [ Ely Ave.], 217 N.Y. 45, 57; Matter of Public Service Comm., 217 N.Y. 61; Matter of Hicks Development Corp. v. Incorporated Vil. of Lawrence, 282 App. Div. 1048, affd. 306 N.Y. 922; De Matteis v. Town of Hempstead, 207 Misc. 1026, affd. 286 App. Div. 1025, motion for leave to appeal denied 286 App. Div. 1104; Burda v. Palisades Interstate Park Comm., 204 Misc. 232, affd. 283 App. Div. 671; Matter of Schantz v. Genesee State Park Comm., 202 Misc. 682, 686.) Despite the rather sweeping language used in some of the last-cited cases, it is likewise true an attempted appropriation could be so irrational or baseless, and with such utter disregard of the public necessity for its use, that the courts would interfere (cf.
But here the power to construct is the power to keep together, as well as the power to put together, the power to maintain, protect, and preserve, as well as the power to erect. ' Matter of Application of Fowler, 53 N.Y. 60. 3.
It is for the courts to determine that the proposed taking is for a public use, but, this being so decided, it is for the commissioners to decide upon the necessity of such taking. In re Fowler, 53 N.Y. 60; Call v. Town of Wilkesboro, 115 N.C. 337, 20 S.E. 468; C., R.I. P.R. Co. v. Town of Lake, 71 Ill. 333; Waterworks Co. v. Burkhart, 41 Ind. 364; Smedley v. Erwin, 51 Pa. 445; [Joplin Consolidated] Mining Co. v. City of Joplin, 124 Mo. 129, 27 S.W. 406; Barrett v. Kemp, 91 Iowa 296, 59 N.W. 76. Courts will interfere and review the exercise of the discretion of those to whom the power of eminent domain has been delegated by legislative enactment only in exceptional cases — as when property is appropriated for private purposes under the guise of public use, or if the condemnation is sought for private gain, or from willful or malicious purposes, or to injure or destroy the rights of other parties, or that they acted without warrant of law and oppressively. Hurley v. [Board of Mississippi] Levee Com'rs, 76 Miss. 141, 23 So. 580; Mills, Eminent Domain, § 11; Douglass v. Byrnes (C.C), 59 F. 29; Lynch v. Forbes (Mass.), [ 161 Mass. 302,] 37 N.E. 437, 42 Am.St.Rep. 404. Confessedly, the ca
The authority to construct an object confers power to maintain it or to keep it constructed by repairing it. In re Fowler, 53 N.Y. 60; First National Bank of Eutaw v. Smith, 217 Ala. 482, 117 So. 38; Town of Pelham v. B.F. Woolsey, D.C., 16 F. 418; Bell County v. Lightfoot, 104 Tex. 346, 138 S.W. 381; Board of County Commissioners of Bernalillo County v. McCulloh, 52 N.M. 210, 195 P.2d 1005. As to the roll call voting machine, it is authorized as a part [3] of the equipment of the building.
Analogous cases treating of subjects other than buildings hold that the authority to construct confers implied authority to keep in repair. In re Fowler, 53 N.Y. 60, in discussing the meaning of the word "construct" as used in an act authorizing the construction of a sewer, the court said: "Nor do we think that the phrases `to construct' and `be constructed' are, in the purview of this act, to be confined to the bare act of building the sewer.
It is for the courts to determine that the proposed taking is for a public use, but, this being so decided, it is for the commissioners to decide upon the necessity of such taking. In re Fowler, 53 N.Y. 60; Call v. Town of Wilkesboro, 115 N.C. 337, 20 S.E. 468; Chicago, R.I. P.R. CO. v. Town of Lake, 71 Ill. 333; Waterworks Co. v. Burkhart, 41 Ind. 364; Smedley v. Erwin, 51 Pa. 445; Joplin Consolidated Mining Co. v. City of Joplin [124 Mo. 129], 27 S.W. 406; Barrett v. Kemp, 91 Iowa, 296, 59 N.W. 76. Courts will interfere and review the exercise of the discretion of those to whom the power of eminent domain has been delegated by the legislative enactment only in exceptional cases — as when property is appropriated for private purposes under the guise of public use, or if the condemnation is sought for private gain, or from willful or malicious purposes, or to injure or destroy the rights of other parties, or that they acted without warrant of law and oppressively.
And, indeed, the authorities hold that, when authority or duty is imposed by law upon a governmental body to "construct" any public work or utility, that term includes also the duty of maintenance and protection — of keeping it constructed by means of necessary repairs." In re Fowler, 53 N.Y. 60, 61; Town of Pelham v. Woolsey (D.C.) 16 F. 418, 419; Bell County v. Lightfoot, 104 Tex. 346, 138 S.W. 381, 382 (construction of public bridges); Words and Phrases, First and Second Series, "Construct."