Matter of Petition of Knaust

101 N.Y. 188 | NY | 1886

At Special Term the petitioner succeeded, but the General Term reversed the decision there made, and he now appeals to this court, alleging two grounds of error: First. "The absence of any ordinance of the common council authorizing the improvement" in question; and Second. "That the work was not done by contract let after public bidding." The questions were before the court in Matter of Walter (75 N.Y. 354), upon the same assessment, but the case was determined upon other propositions, and these were not passed upon. They are, however, insufficient to sustain this appeal. The act of 1886 (Chap. 367, § 1) made it the duty of the commissioners of Central Park to lay out and establish the grade of an avenue to be called St. Nicholas, empowered them to extend and widen Manhattan street, and whenever they should deem it necessary "fix and establish, or change the grade of any street or avenue, or any part of any street or avenue that intersects any street, road or avenue required by law to be laid out, established, regulated or improved by them, or under their direction." They were also directed (§ 3 of same act) to make and file maps of surveys of the avenue and of the widening and extension of Manhattan street, showing its width, location and grade. Section 4 makes these maps and surveys final and conclusive in respect to the matters referred to, "as well in respect to the mayor, aldermen and commonalty of the city of New York as in respect to the owners and occupants" of lands affected thereby, and "in respect to all persons whomsoever." Section 7 of the same act declares that "the said commissioners of the Central Park shall, with respect to the avenue to be laid out by them, as required by this act, and with respect to that portion of Seventh avenue lying north of the Central Park, in said city, and with respect to all streets, avenues, roads and portions of said city required by law to be laid out or improved, under the direction of the said commissioners, and the laying out, grading,regulating, sewering, paving, and improving the same, possess allthe powers and perform all the duties now or heretoforepossessed, enjoyed or exercised by such commissioners in respectto the Central Park, in said city, and by the mayor, aldermen andcommonalty of the city of New York, and the several departments of the said city, in relation to the said streets, avenues and similar improvements thereof in other parts of said city," and enacts that "it shall be lawful for the said commissioners to do all the work required to be done by them, by day's work, or by contract, or in such manner as they shall deem expedient." InWalter's Case (supra) it appeared that the whole work on Manhattan street, including paving, for which the assessment in question was made, was covered by a single resolution of the department of public parks, passed on the 2d of May, 1871, for the regulating, grading, paving and improving Manhattan street from Twelfth avenue to Avenue St. Nicholas. That resolution was said to be "the acknowledged source of authority for the work," and it was all done under the direction of that department and its successor, the department of public works. Such is the case here. The resolution at the bottom of the proceedings is that of the commissioners referred to in the Walter Case, and under it the work was done, partly by contract and partly by the day. It was completed by the department of public works, to which the powers of the Central Park commissioners were transferred. (Laws of 1870, chap, 383, § 16; Laws of 1872, chap. 872, § 7.) The language of the act of 1866, above quoted, is so plain and comprehensive as to permit no other construction than that given to it by the commissioners. The power granted in respect to the improvement was exclusive of that of any other body, and the manner of doing it is left to their discretion. As to both matters their authority was ample. Matter of Deering (85 N.Y. 1, 11), referred to by the appellant, has no application. The avenue, to the improvement of which the proceedings then in question related, had already been laid out and opened, and improvements made under direction of the city government; and as the act of 1865 (Chap. 506), by which it was sought to justify them, confined and limited the power of the commissioners of Central Park to streets laid out by them, it was held they had no jurisdiction, and that the assessment was invalid for want of some resolution or ordinance of the common council authorizing the work. The decision turned on the construction of the statute.

In the case at bar there is no such limitation, and the statute under which the commissioners have acted specifically conferred the power which they have exercised. It authorized the improvement and declared the powers of the commissioners in respect thereto. It not only authorized the laying out of streets, but extended the power of the commissioners so as to include all streets, whether laid out by them, or simply improved under their direction; as to those they were vested with all the powers possessed by them in respect to Central Park, and by the corporation of the city and its several departments over such matters.

A variety of cases are cited by the appellant in support of the objection that the work was not contracted for after advertisement for proposals. They relate to work done under the charter or city ordinances, but imply no limitation to a discretionary power in respect to work ordered by a body whose jurisdiction is derived directly from the legislature.

It is also contended in behalf of the appellant that the act of 1866 was superseded by the act of 1867 (Chap. 696), amended in 1868 (Chap. 288). There are no express words to that effect, and if repealed it is by implication. Such effect cannot be given to the later act, unless its provisions are so inconsistent with, or repugnant to, those of the other, that the two cannot stand together. Nor is the court to strive for such a result. If it is not apparent that the legislature did intend to deal with the very case to which the former statute applied, it should not be disturbed. Here we find no such intention. The existing power of the commissioners is extended, and neither extinguished nor taken away. Their jurisdiction over Manhattan street was specifically conferred by the act of 1866. Its exercise was not forbidden by the act of 1867; nor is it inconsistent with its provisions.

A larger question is also presented. The learned counsel for the appellant insists that the act of 1866 is unconstitutional, saying, "Its title does not express its subject." It is, "An act relative to the powers and duties of the commissioners of Central Park," and a careful scrutiny of its provisions has not enabled us to discover in what respect — having in mind repeated decisions in answer to such objection — the title could be improved. It expresses a general object, and it must now be considered as the settled rule of construction that where such is the case, all matters fairly and reasonably connected with it, and all measures which will or may facilitate its accomplishment, are proper to be incorporated in the act and are germain to the title. (People v. Briggs, 50 N.Y. 553; In re Mayer, id. 504; In re Department of Public Parks, 86 id. 437; In reUpson, 89 id. 67; Water Commissioners of Clinton v.Dwight.^*) Those now before us are strictly within this rule. The provisions of the act, if literally applied, would include no matter not intrusted to the commissioners, nor any subject over which they are not by its terms given jurisdiction. Each section of the act defines a power or prescribes a duty of the commissioners.

We agree with the General Term in the conclusion that the assessment was well laid. The order appealed from should, therefore, be affirmed.

All concur.

Order affirmed.

^* Ante, page 9.