Choate v. City of Buffalo

Spring, J. (dissenting):

Prior to the enactment of chapter 466 of the Laws of 1892, the-charter of the city of Buffalo, which is chapter 105 of the Laws off 1891, vested in the park commissioners the control over the parkways and approaches in that city. Title 11 of the revised city charter is devoted exclusively to the department of parks, and is-intended to provide a uniform scheme for the acquisition of the-lands necessary for these parks and parkways,, for the management thereof by the commissioners, and for providing means to make-effective their authority in the embellishment and improvement of the property intrusted to these officials. There are two or three-principles engrafted in this title to which I will advert, as they may serve to illustrate my view of the case.

The lands used in the parks, parkways and approaches are purchased by the city, after the propriety of acquiring the same has-been determined upon in the way pointed out in the statute. Thn *387city then pays one-lialf of the expenses incurred in the improvement and embellishment of the lands thus obtained, and the owners of the premises benefited thereby the other half. (§ 315 of the charter.) This conforms to the general mode of procedure in making local improvements; that a moiety of the burden shall be borne by the landowners who derive direct benefit therefrom. The expense thus imposed upon the city has often been met by the issue of bonds under the direction of its common council. (Tit. 2, chap. 1, § 14; tit. 4, chap. 2, § 105 of the city charter.)

Chapter 466 of the Laws of 1892 was enacted to enable the park commissioners to acquire and improve lands in the fifth and eleventh wards of the city and in the adjacent town of West Seneca ; they already possessed plenary power in the wards mentioned, but their jurisdiction was limited to1 the city of Buffalo, and the primary purpose of this act was to extend their authority, to enable them to obtain the lands outside which were deemed essential to complete the project contemplated by the act.

The plan was to construct a parkway 150 feet in width and 3 miles in length, extending from Heacock park in the city, to the •Bidge road, in the town of West Seneca, together with a circular park, of about 500 feet in diameter, to be also in the city, and which Avas to be intersected by this parkway.

The statute provided in detail the manner for the acquisition of this land. All of this may have been deemed prudent, as a portion of the lands, as I have stated, was outside the city of Buffalo, and the parties Avhose lands were to be appropriated in the toAvn of West Seneca may not have been familiar with the provisions of the city charter; and if the mode of procedure Avas embodied in the act itself, it would readily be within their apprehension. That it was not designed to include the land acquired by virtue of this enactment within the dominion of the park commissioners in any other Avay than provided by the charter is quite patent. The 1st section of the act unmistakably brings the land to be procured under the act within the park system of the city and under the control and management of the park commissioners, and provides that the same “ shall be maintained and improved, the same as the existing system of parks and approaches in said city, as provided in and by title eleven of chapter one hundred and five of the laws of eighteen *388hundred and ninety-one, and the other provisions of said chapter applicable thereto.”

Section 2, with some reiteration, further provides that “ the same powers of control, maintenance, construction and jurisdiction ” vested in the commissioners by title 11 referred to, shall extend to all the parks and approaches authorized by the act in question.

We have, therefore, this act of the Legislature, passed to enable the city to secure for park purposes land outside its limits and defining the manner of. its acquisition, but without designing to enlarge or restrict the authority of the commissioners already existing, and without in any way making the execution of this act independent of or isolated from the uniform mode of procedure in vogue to embellish and improve the lands to be procured.

It is claimed that section 12 of this act, however, involves a ■ departure from the unvarying method laid down in the charter. That section provides for the issuing of the bonds of the city to pay for the lands to be taken and for the purpose of laying out, improving and embellishing the same.”

Again: “ And the said bonds and the proceeds of the sale thereof shall constitute the fund for paying the cost of the lands taken, under the provisions of this act, and the expenses of acquiring the title thereto, and for the laying out, improvement and the embellishment thereof.”

The contention is, that the import of this section is to make the city responsible, not alone for the purchase of the lands originally, but for all the improvements and embellishments which are made under the direction of the park commissioners; that is, that it is in contravention of the charter and must control. To paraphrase: while the lawmakers were careful to provide that this act was in no sense to infringe upon the provisions of the charter, nevertheless, in the important part relating to the payment for improvements, there was to be a radical departure from the policy incorporated in the fundamental law governing the city. I cannot assent to this proposition. The direction as to the payment for the lands, while not indispensable, may have been advisable to assure the owners of the land in West Seneca that the city was their paymaster. Whatever may have been the object, there is nothing in the provision empowering the issue of bonds by the city, to pay for the purchase or *389improvements, that is in conflict with the obligation contained in the charter resting upon adjacent owners to contribute toward these improvements.

The city had to pay for this land, and it was obliged to pay one-half of the expenses incurred in its embellishment, and the act simply provided the manner in which it should be done. This section is devoted to providing the manner in which the city shall raise the money, and it is not sought to trench upon any previous regulation or practice, and is not dealing with the obligations of individuals. If a new departure had been intended, the act would not have circumspectly provided, in its very inception, that the provisions in force were to remain unimpaired in their application to the lands obtained in pursuance of the act. If, after this cautious incorporation of the mode of procedure in the present act, it had designed to adopt a course in .pointed divergence from it, we certainly would expect to find explicit warrant for the design, and not have it depend solely upon implication.

. It is not inconsistent with the requirement that the city shall pay for the land and improvements by issuing bonds, to read in the act that this referred to the obligations manifestly imposed upon the city and was not designed to relieve the persons benefited by the improvements, from paying their just proportion.

In seeking for a true interpretation of a statute, we must consider its probable and ulterior effect. The fifth and eleventh wards comprise a large part of the city of Buffalo, with much undeveloped territory. If the act in question is to relieve all the owners of land in that large section from contributing to street and parkway improvements of this kind, then the legislation will result invidiously against citizens residing elsewhere in the city. This is a glaring oversight, as well as an injustice, and the construction which accomplishes this rests upon inference. To me the more reasonable construction is that which makes the act a symmetrical whole, that which gives effect to the 1st and 2d sections by putting the scheme in harmony with the plan already in general operation, and by construing section 12 as referring solely to the manner in which the city of Buffalo is to raise the money to make effective the project without changing the terms of the charter so far as it relates to the rights of individuals.

*390The counsel for the appellant raises several other objections to the act and to the mode of procedure under it, but they are well disposed of in the opinion of Mr. Justice Adams.

The judgment should be affirmed, with costs.

Hardin, P. J., concurred.

Judgment reversed and new trial ordered, with costs to the appellant to abide the event.