By the decision about to be made the payment for any grade crossing elimination work, including the expense incurred for work incidental to the elimination, which was commenced in the city of Buffalo after January 1, 1939, is authorized to be made in the first instance from funds supplied by the city and payable through the local Grade Crossing and Terminal Station Commission. My dissent from the view of a majority *Page 114 of the court rests upon my interpretation of article 7, section 14, of the State Constitution, effective January 1, 1939, which, in language clear and unequivocal, directs that "The expense ofany grade crossing elimination the construction work for whichwas not commenced before January first, nineteen hundredthirty-nine, including incidental improvements connectedtherewith as authorized by this section, whether or not an order for such elimination shall theretofore have been made, shall bepaid by the state in the first instance * * *." (Emphasis supplied.)
I find nothing in chapter 289 of Laws of 1939 — an act supplementing the Grade Crossing Elimination Act, applicable to the city of Buffalo — which supports the practice about to be approved. That statute provides, subject to a significant exception presently to be noted, that chapters 677, 678, 679 and 825 of the Laws of 1928, and acts supplemental and amendatory thereof, shall continue to govern the procedure applicable to the payment for all grade crossing elimination projects commenced in the city of Buffalo after January 1, 1939. However, the Legislature was careful to avoid any conflict with the last amendment to article 7, section 14, of the Constitution by expressly providing the following exception, which exerts a controlling influence upon my view of the problem presented by the proceeding now before us: "* * * and except (2) as the provisions of such act or acts are otherwise inconsistent with section fourteen of article seven of the constitution as now in force or with the provisions of this act." (§ 2.) By this exception the Legislature clearly recognized that a fundamental change in State policy in relation to the payment of the cost of highway crossings by railroads at grade had taken place.
One of the clear purposes of that change, as I view it, was to relieve municipalities of future expense in connection with grade crossing eliminations. Thereafter the State, at the outset, was to pay the entire cost of each project and was to be reimbursed by the railroads. No authority exists, legislative or judicial, by which a different procedure may be made effective. True, it may be that for a long *Page 115 period of years incidental expenses, such as the petitioner's wage, have been paid in the first instance from funds supplied by the city of Buffalo. And it is not difficult to understand why State fiscal agents are quite willing to have that practice continue. It may also be true that to continue the practice of past years may serve local convenience. But the fact is that practice does not accord with — indeed, it disregards — the plain language of our present Constitution, which directs that such an expense "shall be paid by the state in the first instance." I indulge in the permissible presumption that the framers of that mandate "understood the force of the language used and, as well, the people who adopted it." (People v. Rathbone, 145 N.Y. 434,438.)
LEHMAN, Ch. J., LOUGHRAN, FINCH, RIPPEY and DESMOND, JJ., concur with CONWAY, J.; LEWIS, J., dissents in option.
Ordered accordingly. *Page 116