In re Mayor

• Decision Date: 06 October 1885
• Citation: 2 N.E. 642,99 N.Y. 569
• Parties: In re MAYOR, etc., to acquire Public Parks.
• Court: New York Court of Appeals Court of Appeals

99 N.Y. 569

2 N.E. 642

In re MAYOR, etc., to acquire Public Parks.¹

Court of Appeals of New York.

Filed October 6, 1885.

Simon Sterne and John C. Shaw, for appellants.

John F. Dillon, for respondent.

FINCH, J.

Numerous provisions of the constitution are claimed to have been violated by the enactment of the law authorizing and requiring the acquisition and maintenance of new public parks by the city of New York. The large interests involved, and the importance of some of the questions raised, have subjected the act to a patient and critical examination both in the court below and upon the argument at our bar, and seem to demand from us a full statement of the reasons upon which our determination is founded.

1. The title of the act is ‘An act laying out public places and parks and parkways in the Twenty-third and Twenty-fourth wards of the city of New York, and in the adjacent district in Westchester county, and authorizing the taking of lands for the same,’ (Laws, 1884, c. 522;) and is claimed to violate section 16 of article 3 of the constitution requiring that a private or local bill shall embrace but one subject, which shall be expressed in the title. Section 6 of the park act authorizes the use of a portion of Van Cortlandt park for the purposes of a rifle range and military parade ground; and section 12 extends over the whole of the newlyacquired territory the jurisdiction of the department of public parks, which, by the city charter of 1873, was made the dominant authority for their maintenance and protection.

It is insisted that two new and separate subjects were thus injected into the body of the act without hint or reference in the title. The criticism is quite too rigid and narrow. It would lead us to a condemnation which few titles would escape until they became cumbersome and awkward digests of the details of their enactments. What are here denominated new subjects are fairly and reasonably elements and details of the laying out of new parks, and the acquisition of lands therefor, and so embraced in the one general subject of the bill. The most valuable test of such a title, and the one which we have usually employed, is the inquiry whether the title was so framed as to be deceptive or misleading, and consummated the evil at which the constitutional prohibition was aimed. In re Lands in Flatbush, 60 N. Y. 398;In re Paul, 94 N. Y. 497. Where one reading a proposed bill, with the title in his mind, comes upon provisions which take him by surprise, which he could not reasonably have anticipated, and so both citizen and legislator are misled and thrown off their guard, it is our duty to declare the condemnation of the fundamental law. But where, as in the present case, no such evil lurks in the title, and the provisions criticised may be easily and reasonably grouped within the scope and range of the general subject expressed, we ought not to destroy the legislation assailed upon some nice and rigid criticism of forms of expression. How the parks should be used and governed, is a natural detail of their laying out and acquisition, and not the introduction of a new and foreign subject.

2. It is further objected to the act that it makes no provision for just compensation to those whose lands are taken, and so violates section 6 of article 1 of the constitution. While it is not necessary, in advance of the taking, to pay to the land-owner his compensation, it is necessary that the act which invades his ownership shall provide for a certain and definite and adequate source and manner of payment. Sage v. City of Brooklyn, 89 N. Y. 189. This necessity is vital and of the most essential character, since, if unheeded or disregarded, it transforms the right of eminent domain into a leglized plunder of the citizen. But this act does not so offend. It puts the public purse of the city behind the debt as the source of its payment. By section 4 the municipality is required, within four calendar months after the confirmation of the report of the commissioners, to pay the compensation awarded to the parties interested; and if payment be not so made, those to whom it is due may, after demand, maintain an action against the city. Nothing in this record shows that the municipalityhas already reached the limits of its capacity to contract debt, or cannot legally incur the new liability. There is no ambiguity or uncertainty about this provision, and the citizen is not turned over to to the blind remedy of uncertain and complicated assessments and a devious and doubtful litigation. It is true that the act contains provisions to enable the city to meet the liability imposed which have been the subject of criticism in the arguments addressed to us. By section 10 the city is authorized to issue 30-year bonds, drawing interest at a rate not exceeding 3 per cent., to be sold at not less than per, and the proceeds of which shall constitute the ‘New Park Fund.’ That does not alter or affect the right of the land-owner. He has still the responsibility of the city, which he may enforce in the courts, and has not concern with the question of the source of the debtor's payment. We cannot say that the provision is inadequate even for the purposes of the municipality; but, whether so or not, the security of the creditor remains in the corporate liability, which we have always held sufficient.

Further objection upon this branch of the case respects the language used in the act directing the payment of the awards. By section 5 the commissioners are required to set forth in their report, among other things, ‘the several and respective sums estimated as and for the compensation and recompense or allowance to be made for the loss and damage of the respective owners of the fee or inheritance of such lands, tenements, hereditaments, and premises, respectively, and the loss and damage of the respective owners of the leasehold estate, or their interests therein, separately.’ It is said that this language excludes from compensation mortgagees, judgment-creditors, widows whose dower has been admeasured, and the like. This is an entire misconception of the meaning of the act. The general provision for awards is contained in a previous section, (section 2,) and is as broad as language can well make it. Specifically it requires the commissioners to estimate and report ‘the loss and damage to the respective owners, lessees, parties, and persons respectively entitled to or interested in the said lands, tenements, hereditaments, and premises.’ Section 3 provides for the filing and correction of their report, and section 4 for the payment of the awards. Then comes section 5, which contains the language criticised. It relates to specific and exceptional cases, and gives specific directions. Where any of the owners or persons interested are minors, where the names of such owners or persons interested are not set forth in the report, where they are unknown and cannot be ascertained, the award may be paid into court; but, lest that permission should be abused or too loosely construed, the section provides that the names shall be given, so far as they can be ascertained, of all persons interested, and a sufficient designation of the lands, and then that the commissioners shall report separately the damages to the fee and any leasehold estate. The whole point of the provision is that in a case where all the interested parties are not known, and their separate rights cannot be ascertained, the estimate shall not be made in the gross if there is both a fee and a leasehold estate, but the damages to each shall be separately estimated and stated. A study of the terms of the act thus dispels the least shadow of reason for the contention that the rights of some interested persons have been disregarded.

3. It is further argued that the act violates section 7 of article 1 of the constitution in that it commits the estimate and appraisal of damages to two commissioners instead of three. This objection again is founded upon a misconstruction of the act by taking a phrase from its surroundings and reading it with literal severity. Section 2 provides for the appointment by the supreme court of three disinterested persons as commissioners to estimate damages, who are to take the oath of office, and then proceed with due diligence to make a just and equitable estimate. Section 8 then provides for action by a majority of the board, when only such majority are acting or agreed. It may be conceded that the provision might have been more accurately expressed, but about its meaning and proper construction there can be no just doubt. The phrase relating to all the commissioners, ‘if they had acted therein,’ and that relating to such two ‘as shall be acting in the premises,’ indicate that the provision refers to a case where one of the three, having opportunity to act, declines to do so, or is unable to be present, or differs from his associates; and was not meant, and cannot be held, to give to two the right to exclude the voice or vote of the third. If, under this act, two of the commissioners, without notice to the third, and ignoring his right, should assume to make an appraisal, we should easily hold it to have been unauthorized by the statute; for the provision of section 2, which requires the three commissioners to make the appraisal with due diligence, and to ascertain the damages, must be read in connection with section 8, and it could not be said that the commissioners made the appraisal when one of them was excluded; but it could be and would be true, as in all cases of action by a majority, where the third had notice and opportunity to participate, but omitted or was unable to do so. In case of death, resignation, disqualification, or refusal to act, the law provides for a substituted commissioner, (section 7,) so that the province of section 8 is narrowed to the case of a disagreement, or a temporary or incidental absence. In these provisions ...