In re Board of Street Opening & Improvement Relative — 42 N.Y. St. Rep. 836

Majority

p. 836

In the Matter of the Application of The Board of Street Opening and Improvement Relative to Acquiring Title to Certain Lands for a Public Park.

(Supreme Court, General Term, First Department,

Filed December 31, 1891.)

Headnote

1. Eminent domain—Cemeteries—Laws 1887, chap. 320.

The authority conferred by chapter 320, Laws 1887, upon the board _ of' street opening to enter upon “ any and all lands, tenements and hereditaments,” south of 155th street, which-it shall deem necessary for the laying-out of a park, includes the right to select and take cemetery land for that-purpose.

2. Same—Damages.

In such case if the removal and reinterment of the bodies are taken charge of by relatives or the church, the expense thereof will be one of' the items of damage to be considered in making an award; if by the city, it must be provided for by an appropriation or out of the proceeds of the bonds to be issued pursuant to the act.

Appeal from an order appointing commissioners of estimate and assessment in proceedings to condemn St. John’s cemetery for the purpose of a public park.

William .H. Ciarle, counsel of the corporation, and John P. Bunn, for the Board of Street Opening and Improvement, resp’t;, Stephen P. Nash, for Trinity Church, app’lt.

Chapter 320 of the Laws of 1887 authorizes the-board of street opening and improvement of the city of New York:

p. 837

to select, locate, and lay out such and so many public parks in the city of ¡New York, south of 155th street, as said board shall from time to timé determine. • Said act also authorizes the said board and all persons acting under its authority, and by its direction, to enter upon any and all lands, tenements and hereditaments which the board shall deem necessary to be used and converted, for the laying out of any park so selected. The said statute also authorized the board of street opening and improvement, through the counsel to the corporation, to institute proceedings in this court to condemn the lands, tenements, hereditaments and premises required for the purpose of the parks so located.

Pursuant to the authority so conferred said board selected, located and laid out for a public park certain lands in the ¡Ninth ward of said city, known as St. John’s cemetery, and thereafter, through the counsel of the corporation, having given due notice of the application, presented a petition to a special term of this court praying for the appointment of commissioners of estimate. Upon the hearing of such application the corporation of Trinity church appeared through its counsel and filed a written answer containing objections to the granting of such application, based principally upon the ground that the said statute did not confer the power to condemn a cemetery for a public park. The court took the matter under advisement, and subsequently an order was made granting the application and appointing three commissioners of estimate, and from that order this appeal is taken.

The statute under which it is sought to condemn the property authorizes a condemnation for public parks of “ any and all lands, tenements and hereditaments ” situated in the city of ¡New York, south of One Hundred and ¡Fifty-fifth street. It would have been impossible for the legislature to have conferred upon the city authorities any broader or more comprehensive authority with regard to the land which might be selected and taken for public parks; neither cemeteries, nor any other lands, being excepted by the statute. The learned counsel for the appellant concedes that the legislature has the power to authorize the city authorities to select and take the cemetery in question for a public park, but he claims that the power to do so ought not to bo deemed to have been conferred upon the board of street opening * by the general language of the act. In other words, it is desired to have the court, incorporate into the statute an exception in favor of cemeteries, which the statute itself does not contain. The rules applicable to cases of this character have been frequently laid down by the court of appeals, and are adverse to the claim made by the counsel for Trinity church.

In McCluskey v. Cromwell, 11 N. Y., 601 , the court said, “It is beyond question the duty of courts in construing statutes to give effect to the intent of the law-making power, and seek for that intent in every legitimate way. But in the construction both of statutes and contracts the intent of the framers and parties is to besought first of all in the words of the language employed, and if the words are free from ambiguity and doubt and express plainly, clearly and distinctly the sense of the framers of the instrument

p. 838

there is no occasion to resort to other means of interpretation. It is not allowable to interpret what has no need of interpretation, and when the words have a definite and precise meaning, to go elsewhere in search of conjecture in order to restrict or extend the meaning. Statutes and contracts should be read and understood according to the natural and most obvious import of the language, without resorting to subtle and forced construction for the purpose of either limiting or extending their operation. Courts cannot correct supposed errors, omissions or defects in legislation, or vary by construction the contracts of parties. The office of interpretation is to bring sense out of the words used and not to bring a sense into them.” In The People v. Woodruff, 32 N. Y., 364 , the court said, “It is a dangerous principle to imply power v'hen it is not conferred by a legislative authority in clear and distinct terms. It is always competent for the legislature to speak clearly and without equivocation, and it is safer for the judicial department to follow the plain intent and obvious meaning of an act, rather than to speculate upon what might have been the views of a legislature in the emergency which may have arisen. It is wiser and safer to leave the legislative department to supply a supposed or actual casus omissus, than attempt to do it by judicial construction.” In Johnson v. H. R. R. R. Co., 49 N. Y., 462 , the court said, “ Where the language is definite and has a precise meaning, it must be presumed to declare the intent of the legislature. And it is not allowable to go elsewhere in search of conjecture to restrict or extend the meaning. McCluskey v Cromwell, supra.

“The provision here is clear and precise and courts cannot go beyond or outside of it under pretext of interpretation to cure any supposed blunder of the legislature.” Again, in Benton v. Wickwire, 54 N. Y., 228 , the court said : “We do not feel it necessary to go into any discussion of the distinction, in construction, between remedial, penal or other statutes, because1 we regard it as settled that all statutes must have a construction according to the language employed, and where no ambiguity exists courts cannot correct supposed defects.”

In the case at bar the language used is free from all ambiguity and there is no room for interpretation. The authority given is to select and take “ any and all lands, tenements, and hereditaments,” south of One Hundred and Fifty-fifth street. For the court to hold this language does not include land used for cemeteries would be to do precisely what the court of last resort has repeatedly decided cannot be dona

It is conceded by the learned counsel for the appellant, and it is a fact, that in this state there is no express statutory prohibition against the taking of cemeteries under the power of eminent domain, but he claims that the general legislation of the state has indicated a plain policy that such property shall not be taken unless specially authorized by legislative act; and he cites in support of this claim chap. 843 of the Laws of 1868; chap. 133, § 10 of the Laws of 1847; chap 203, § 34 of the Laws of 1878, and chap. 273 of the Laws of 1886. An examination of the provis

p. 839

ions of- these statutes does not sustain the claim made by counsel as to what the policy of the state has • been, but seems rather to warrant the inference that, in the absence of an express prohibition against taking cemeteries, general statutes authorizing the taking of lands for public purposes will include the same. The said act of 1868 provides that no private or public road shall be laid out or constructed through any graveyard or burial ground in this state, unless the remains therein contained are first carefully removed and properly reinterred in some other burying ground, at the expense of the persons desiring such road. This statute certainly does not imply that graveyards and burying grounds cannot be taken for roads. On the contrary, it clearly implies that they can be taken for roads, but that the remains must first be removed and reinterred.

The act of 1847 to establish rural cemeteries provided that no> street, avenue or thoroughfare should be laid out through any such cemetery without the consent of the trustees of such association, except by special permission of the legislature. The act of 1866, incorporating soldiers’ monument associations, contains a similar provision ; and the act of 1878 incorporating pipe laying companies, provided that no pipe line should be constructed, through any cemetery or burying ground. The said acts of 1847 .and 1866 undoubtedly indicate that the legislature was of the opinion that when the trustees of rural cemeteries or of soldiers’1 monument associations do not consent to the laying out of streets- or roads through the lands held by such corporations, special permission of the legislature for such laying out must be first obtained ; but such statutes also indicate that the legislature was of the opinion that, in the absence of such prohibition, the general laws authorizing the laying out of streets and roads through private property would authorize the laying out of streets and roads through such lands. So in regard to the act of 1878, the provision above cited indicates that but for the prohibition the general power conferred by the statute to construct pipe lines would have authorized the construction of the same through cemeteries and burying grounds. The inference to be drawn from the prohibition contained in said statutes against the invasion of cemeteries and graveyards is, that if the legislature, when it passed the act of 1887, now under consideration, had intended that cemeteries in the city of Hew York should not be taken for public parks, it would have expressly so declared, and would have inserted in the statute a positive prohibition against taking the same.

It is suggested by the counsel for the appellant that if the act had provided that the board of street opening might lay out as many parks in the city of Hew York as it should from time to time determine, taking therefor any cemeteries and burying grounds that the board might consider it advisable to take, the law would never have met with the approval of the legislature. This may, or may not, be so. The power conferred upon the city authorities by said act, chapter 320, Laws of 1887, to condemn lands for • public parks is substantially the same as was given to the city by the general act of 1813.

p. 840

Indeed, many- of the provisions of said act of 1887, and of similar statutes, are taken directly from said act of 1813, Now the reports and records of the courts show that in several proceedings instituted by the city under said act of 1813, and similar laws subsequently passed, parts of cemeteries have been condemned for streets and public parks. As far back as 1834 a portion of a cemetery belonging to Trinity church was taken for the extension of Albany street. Later, under the same laws, a portion of the cemetery belonging to the Brick Presbyterian church was taken for the extension of Beekman street, and in later years a boulevard, several hundred feet in width, was extended directly through a cemetery in the upper part of the city belonging to Trinity church, cutting the cemetery completely in two parts, and Tendering it necessary that the two parts should be connected by a bridge extending across the boulevard. It is stated by the counsel to the corporation, in his brief, that in the extension of Lexington avenue part of the burying ground of the Harlem Methodist Episcopal church was taken, and it appears by a statement contained in the brief of the counsel for the appellant that the board of education of this city, under the act, chap. 191 of the Laws of 1888, has recently acquired an old burying ground, situated between First and Second street and First and Second avenue, for school purposes; and in a number of other instances it is well known that portions of cemeteries in this city have been taken for public purposes under said statutes. Under these circumstances it may be fairly presumed that the legislature which passed the act of 1887 was aware that, under similar statutes, portions of cemeteries and grave-yards had been repeatedly condemned. It is by no means certain, therefore, that if said act of 1887 had in terms authorized the taking of cemeteries for public parks, that it would never have met the approval of the legislature.

On the contrary, in view of the proceedings which have been taken under similar statutes and which are matters of notoriety, it is to be presumed that the legislature thought that in some cases it might be necessary and proper that old and disused cemeteries should be condemned for public parks, and that it might be safely left to the discretion of the board of street opening to determine in what cases this should be done; and it is to be presumed that if the legislature had intended that no cemetery should in any case be taken for a public park, the statute would have contained a prohibition against such taking, similar to those found in the other statutes above referred to. At all events, whether the legislature would, or would not, have passed the statute if it had in terms authorized the condemnation of cemeteries, as matter of fact it did pass the statute containing a power to condemn lands for public parks as broad as that given by former statutes, under which portions of cemeteries have been condemned for streets, parks and other purposes; and if the failure to insert in the statute a prohibition against the taking of cemeteries for public parks was the result of an oversight on the part of the legislature, or of a misunderstanding by it as to the extent of the powers con

p. 841

ferred upon the city authorities, the defect in the statute must be remedied by the legislature itself and not by the courts.

Again, the counsel for the appellant says that the constitutional provision which allows private property to be taken for public use embraces such property only as can be used for the public; that there is no possible way in which the human remains contained in the cemetery can be so used, and therefore they cannot be taken ; that decency as well as the existing law requires not that they should be used, but that they should be removed and re-interred in some suitable place; but that the power to do this is not given by the act, nor is it within the power of eminent domain.

It is quite true that such remains cannot be used for the purposes of a public park, and also that they cannot be taken by the city authorities under'the power of eminent domain delegated to them by the legislature. The city authorities can, however, take the fee of the land which is in the corporation of Trinity church, and they can extinguish the right of burial in such land however acquired, and in whomsoever vested. It would seem that as the land has been duly selected as a site for a public park, and proceedings for the condemnation thereof have been instituted, the relatives of persons who have been buried in the cemetery, or the church itself, which still owns the fee in the land, would feel called upon to cause such remains to be removed and properly re-interred. In case this shall not be done, common decency will doubtless require that the city authorities should cause such removal and reinterment. The relatives of the persons buried in the cemetery undoubtedly have authority to cause such removal and reinterment, and the corporation of Trinity Church can easily acquire the same authority. See chap. 215 of the Laws of 1842 ; chap. 349 of the Laws of 1878, and chap. 600 of the Laws of 1887. The provisions of the two last named acts are clear and explicit, and by proceeding in accordance therewith the church can exercise such power of removal and reinterment without the consent of the relatives of the deceased, and without any notice to the relatives beyond that required by the statute. In case neither the relatives nor the church shall cause such removal and reinterment, it will undoubtedly be the duty of the city authorities to cause such removal and reinterment, and there is no doubt but what the city authorities will have ample power in the premises. Such power is to be found in the general provisions of law which place all parks in the city under the control of the park department, and which authorize the board of estimate and apportionment to make annual appropriations for the construction and maintenance of public parks.

It is also to be found in said chapter 320 of the Laws of 1887, which authorizes said department to construct the parks acquired under that act, and which authorizes the issue of bonds to an amount not exceeding $1,000,000 each year for the payment of all expenses to be incurred under the authority of the act, including the construction of such parks. The expense of the removal, and of such a re-interment, must of course be borne directly or in

p. 842

directly by the city. If the removal and re-interment are taken charge of by relatives, or by the church, the expense incurred," or to be incurred therefor, will be one of the items of damages to be considered by the commissioners of estimate in making their awards. • If the duty of causing such removal and re-interment is devolved on the city authorities, the expense thereof must be provided for, either by an appropriation through the board of estimate and apportionment, or out of the proceeds of bonds provided for in § 10 of chapter 820, of the Laws of 1887.

The counsel for the appellant also claims that there is no authority to sustain the decision appealed from, and that it must rest upon the language of the statute conferring the power upon the board of street opening.

As above stated, portions of cemeteries have in quite a number of instances been condemned for public purposes under statutes whose provisions, so far as the question of the power to condemn is concerned, were substantially the same as those of said act of 1887. While it is true that there is no reported case in which it has been expressly held that a statute giving power to condemn any and all lands located in certain portions of the city includes the power to condemn cemeteries, it is equally true that there is no decision holding that such statute does not include that power. So far as the reported cases go, it does not appear that the objection has ever before been taken that the statutes under which condemnation proceedings have been instituted did not confer the power to condemn cemeteries.

In the Matter of Albany Street, 11 Wend., 149 , it does not appear that any objection.was made to the appointment of commissioners of estimate. In that proceeding a portion of a cemetery belonging to Trinity Church was condemned, and when the report "was presented to the court, counsel for Trinity Church appeared and objected, not that the statute did not authorize the condemnation of the cemetery, but that such condemnation was not necessary. The opinion of Chief Justice Savage indicates that the court entertained great doubt whether the decision of the corporation as to the necessity of the improvement could be reviewed, but it was held that if it could be reviewed at all, such review could not be had at that late stage of the proceedings. It is to be presumed that if the learned counsel who appeared for Trinity Church in that proceeding had supposed that the statute did not confer upon the corporation the power to condemn a part of the cemetery, he would have made that objection, for as that objection would have gone to the jurisdiction of the court to entertain the proceedings at all, it would probably have been available at any stage of the proceedings.

In the Brick Church case, 3 Edw., 155 , the chancellor declined to give his consent too sale of the cemetery owned by that church to the city, because some of the vault owners objected to such sale. It appears, however, that a portion of the cemetery was subsequently taken for the extension of Beekman street, and the report of the referee as to the disposition of the award allowed to the property, as between the church and the owners of vaults and

p. 843

burial plots, is to be found in 4 Bradf,, 503 . The most that can be said upon this branch of the case is, that various proceedings have been taken, at different times, under different statutes, similar to the statute of 1887, for the condemnation of cemeteries or parts of cemeteries for public purposes. There is no reported case in which it appears that the objection of the want of power to condemn cemeteries, as well as other property, was raised, and there is consequently no decision to be found, either holding that the statutes gave, or did not give, such power. If, therefore, we are to indulge in presumptions at all, it would seem that the fair and natural presumption is, that, if a proper respect for the remains of the dead, and the feelings of the living, require that cemeteries should never be taken for public purposes, every possible objection to such proceedings would heretofore have been raised, and the fact that no decision can be found holding that the objection of want of power was a valid one affords strong grounds for the presumption that such objection was never taken, and the further presumption that it was never taken because it was not considered available.

The fact that the board of aldermen urged upon the board of street opening the importance of taking this particular cemetery for a public park is not a valid ground of objection to the order appointing commissioners. The legislature saw fit to vest in the board of street opening an absolute discretion as to what land should be taken under the act, and it appears that such discretion has been exercised. Whether the board of street openings was influenced in its action by the representations of the board of aldermen, or by representations made by any other board, or by any person not connected with the board of street opening, is wholly immaterial. The order appealed from should be affirmed, with costs.

Van Brunt, P. J., and Barrett, J., concur.