McCutcheon v. Terminal Station Commission

I dissent on the ground that some of the essential features of the contract in question involve the appropriation of the money or other property of the city of Buffalo to objects other than city purposes. It was conceded in the prevailing opinion in People ex rel. Simon v. Bradley (207 N.Y. 592, 611) that if the act creating the terminal commission permitted such appropriation it would be unconstitutional. When that case was decided I was one of those who deemed the statute objectionable in this respect, and I think the contract which has now been made thereunder demonstrates the validity of the principal objection then presented in the dissenting opinion of Chief Judge CULLEN.

The contribution by the city of the $98,000 excess awarded in the appraisal proceeding for the exchange of lands can only be justified upon the assumption that this amount represents a portion of the expenses necessarily and properly involved in the elimination of grade crossings, and I am not convinced that such is the fact.

I find no authority conferred upon the terminal commission to acquire the triangular parcel of land on the Buffalo river for which the city pays by the conveyance of other lands. In Peopleex rel. Simon v. Bradley (supra) Judge CHASE said that nowhere in the Terminal Act was there any express requirement that the commissioners should or might acquire real property for any purpose except in connection with the work of eliminating grade crossings, and that authority to acquire real property for any other purpose should not be inferred. According to the trial court this triangular parcel is to be acquired for the relocation of fire mains; according to the terminal commission its acquisition is intended to give the city of Buffalo a dock frontage of 200 feet on Buffalo river. Neither purpose has any real relation to the elimination of grade crossings.

Although one of the express objects of the Terminal Act was to secure to the public freedom from the obstruction of the streets of the city of Buffalo by railroads, we find that the contract provides for laying tracks in a street where none now exist. I think that this provision is wholly unauthorized, and in plain violation of the spirit and intent of the act.

I have mentioned only a few obvious objections to the validity of the contract. There are others equally serious. Reading and considering it as a whole, it seems to me that its authors, actuated doubtless by a desire to promote what they regard as the public welfare, have gone beyond their powers under the Constitution and the Terminal Act as heretofore construed by this court.

CHASE, HOGAN, CARDOZO and POUND, JJ., concur with HISCOCK, J.; WILLARD BARTLETT, Ch. J., reads dissenting memorandum, and SEABURY, J., concurs.

Judgment affirmed.