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The plaintiff claims that the contract entered into by the park commissioners for the paving of Fillmore avenue is invalid, because the assessment therefor had not been previously confirmed by the common council. This claim is based upon a section of the charter of the city of Buffalo, which prohibits that city from entering into a contract for any work or improvement, with certain immaterial exceptions, at a price exceeding five hundred dollars, "until the assessment therefor has been confirmed." (L. 1870, ch. 519, p. 1205, § 19, as amended by L. 1885, ch.181, p. 325, § 20.) The main question arising upon this appeal is whether that section applies to the board of park commissioners and prevents them from contracting without a previous confirmation of the assessment.
The park commission was organized by chapter 165 of the Laws of 1869, entitled "An act to authorize the selection and location of certain grounds for public parks in the city of Buffalo, and to provide for the maintenance and embellishment thereof." This act formed no part of the city charter and was in no way dependent thereupon. It created an independent department of the city government and clothed it with power to locate parks, to lay out approaches thereto, to appropriate and condemn lands for these purposes, to make rules for the regulation, government and protection of the parks
and provided an elaborate system of procedure to enable the commission to create, embellish and maintain parks with appropriate approaches for the benefit of the city. The powers thus confided to the commission were to be exercised independently, without the consent or approval of any other body or officer. The year after the passage of this statute the city charter was completely revised, but no part of the act of 1869 was incorporated therein, and the park commissioners were not included among the officers of the city. (L. 1870, ch. 579.) The charter and the park commission act continued to be separate, although one or the other was amended almost every year, until 1885, when the provisions of the latter were, in substance, added to one of the titles of the former. (L. 1885, ch. 181, pp. 326, 330.) The provisions added, however, were no more inter-dependent with the remaining provisions of the charter than the separate acts had been prior to the consolidation. The apparent object of such addition was to have all laws relating to the city government in its various departments embraced in a single statute for the sake of convenience. The park commissioners were not made city officers, but were still given "sole and exclusive power by contract or otherwise to open, grade, construct, repair and maintain the roadways" and approaches to the different parks, without leave or license from common council or other agency of the city and even without the assent of the adjacent owners. They were required, whenever any part of the work was assessable locally, to publish in the official paper notice of their intention to make the proposed improvement, for a specified time, and after that to hear all interested persons upon the question of whether the work should be done or not. It is not probable that the legislature intended to provide for two hearings upon the same question, one before the park commissioners and the other before the common council, or, by implication only, to confer upon the latter body the power to determine that an improvement ordered by the former should not be made. This would be inconsistent with "the sole and exclusive power" conferred upon the park commissioners with reference to the subject of
parks and their approaches. The object of section nineteen of title nine of the charter was to provide for a hearing after confirmation of an assessment, so that the common council could then determine, when all persons interested had been heard, whether to go on with the work, or abandon the enterprise. That section, as we think, applies exclusively to the regular municipal government and to the contracts made by it, through its common council, because it would enable that body to decide intelligently and before it was too late to recede, the question submitted to its exclusive jurisdiction whether a public improvement, devised by it and for which it only was responsible should be contracted for or not. We do not think that it applies to the park commissioners or to the contracts made by them, because the common council has no power to decide whether such contracts are to be made or not, as the entire subject is expressly committed to an independent department of the city government. The only duty of the common council in the matter is to raise by local assessment one-half the cost of such improvements as the park commissioners may determine upon, not exceeding, however, the limitation of the statute as to amount. While section nineteen says that "the city shall not enter into a contract" until the assessment has been confirmed, the history and nature of the two acts referred to show that the reference is to the city as governed by the mayor and common council, and not to the park department.
The interpretation of a statute should accord with its meaning and a liberal rather than a literal construction should prevail when it leads to a discovery of the real intention of the legislature. (Dwar. on Stat. 690; Ploud. 205.)
The contract as embraced in the written proposal and the resolution of acceptance was between the defendant Barber and the park commissioners, not between the city and Barber. While the written agreement was in form between "the city of Buffalo by the park commissioners," it was notwithstanding the contract of the commissioners, as an independent department of the city, as appears from the reference therein to the proceedings of the board upon which it depended for validity.
As the city was to pay for the work and to have the sole benefit thereof, the contract was its contract in that sense, but not within the meaning of said section nineteen, which refers to contracts made by the regular officers of the municipal government, and not to those made by a separate department possessing independent corporate powers. The subject has been so fully considered by the learned General Term as to require no further discussion on our part.
The judgment should be affirmed, with costs.
All concur, except BRADLEY and HAIGHT, JJ., not sitting.
Judgment affirmed.