119 Misc. 785 | N.Y. Sup. Ct. | 1922
Two proceedings have been instituted by the Bronx parkway commission to obtain peremptory mandamus orders requiring the board of estimate of the city of New York to provide funds for the expenditures of the commission. Proceeding No. 1 relates to expenditures for improvement work in 1922 under section 16 of the act creating the commission (Laws of 1907, chap. 594, as amd.), and proceeding No. 2 relates to funds for the maintenance and operation expenses of the commission for the year 1923 under section 18 of the same act. The proceedings are defended on the ground that the Bronx parkway legislation is unconstitutional, violating article VIII, section 10; article X, section 2, and article III, sections 26 and 27, of the State Constitution, and also on the ground that the approval which the board of estimate gave to the Bronx parkway proposal in 1913 was the result of fraud and mistake. The same questions are presented in both proceedings. Time does not permit a review of the history of the legislation or a detailed analysis of its provisions, and I shall not attempt to do more in this memorandum than indicate briefly my reasons for holding that the legislation is constitutional and that the objections must be overruled. (1) Certain established rules of construction must always be observed in considering the constitutionality of legislative enactments, including the following: That the legislative power is unlimited except as restrained by the Constitution; that every act of the legislature is assumed to be in harmony with the Constitution, unless the contrary clearly appears, and that if two constructions be permissible, then the one making the act valid must be adopted. Matter of McAneny v. Bd. of Estimate, 232 N. Y. 377. (2) The objection that the Bronx river parkway is not a city purpose for which indebtedness may be lawfully incurred under article VIII, section 10, of the Constitution, I think is met by the ans wers given by the Court of Appeals to the same objection raised at the time of the construction of the Brooklyn bridge and of the acquisition of Pelham Bay parkway. Both of those projects involved the expenditure of money outside of the then limits of the city of New
Ordered accordingly.