Opinion
March Term, 1899.
John Whalen, Corporation Counsel, Charles Blandy and E.J. Freedman, for the appellant.
John C. Davies, Attorney-General, and George W. Stephens, for the respondents.
The question in this case is whether or nor, as matter of legal right, the relator is entitled to require the Commissioners of the Land Office to insert in the deed to the applicants the terms and conditions proposed by the board of docks.
The contention of the relator is based on the provisions of section 86 of the charter. Its claim is that, under that section, in a case like the present, the commissioners are bound to insert in the grant the terms and conditions recommended by the board of docks; that the words "recommended by the board of docks" refer, not to the grant, but to the terms and conditions. If we then transpose the words in accordance with that idea, the sentence in that regard will read as follows "shall insert in the grant such terms and conditions recommended by the board of docks as will protect the public interests of the city in respect to navigation and commerce." Such a reading would not sustain the relator's position. For it would only require the commissioners to insert such of the proposed conditions as would protect the public interests of the city in respect to navigation and commerce. That would vest in the commissioners a discretion; it would be for them to say what would protect the public interests of the city in the respects named.
It is suggested that the words "as may be" may be interpolated just before the word "recommended," so that then the expression will read as follows, "who shall insert such terms and conditions in the grant as may be recommended by the board of docks as will protect the public interests of the city in respect to navigation and commerce." This reading does not help the relator. For there remains, involved in the last part of the sentence, a discretion to be exercised by the commissioners. In order to avoid this, the latter part of the sentence would have to be entirely disregarded.
The statute evidently contemplates that there may be applications, in regard to which the board of docks will determine and so report, that the granting of the same will conflict with the rights of the city or be otherwise injurious to its public interests. Whether in such a case the commissioners have any power to make a grant, need not be here considered, for no such report was made, and this is not an action for an injunction.
The statute also contemplated that there might be cases where the board of docks might determine and report that the grant applied for would not conflict with the rights of the city or be injurious to its public interests, and, therefore, would recommend the grant. In such a case the commissioners were required to insert, in the grant, such terms and conditions as would protect the public interests of the city in respect to navigation and commerce. If the commissioners inserted terms or conditions that they had no right to insert, or if, for any other reason, the city did not deem the grant to be valid, a remedy was provided for the city in the last sentence of the section which provides that "the validity of any such grant or patent may be judicially determined in an action brought by and in the name of the city."
This view of the statute leads to the conclusion that the construction which the relator gives to section 86 is not permissible.
If the board of docks took no action upon the application, either to condemn it or recommend it, the question might arise whether the commissioners, under their general powers (§ 831 of the charter, § 70 of chap. 317 of 1894), could make a grant. That question is not before us. The present application assumes that the commissioners are in a position to give a grant of some kind, and the only question is whether they are bound to insert the proposed terms and conditions. The validity of the grant, if one is made, we are not called on to consider in this proceeding.
It is argued by the relator that the terms and condititions submitted by the board of docks are reasonable. The commissioners thought otherwise, and I am not persuaded that their conclusion, in this respect, was erroneous. The city apparently took the position that, although they did not care to take and improve the property for the public benefit, still they were not willing that the riparian owner, the only other party that had any right to obtain it, should do so, except at the peril of losing the benefit of his improvements at any time the city should desire to improve in its own way the water front. It is difficult to see how the protection of "the public interests of the city, in respect to navigation and commerce," would require such a burden to be placed upon individual enterprise in a field the city cared not to enter.
The conclusion is, therefore, reached that the relator is not, as matter of legal right, entitled to require the Commissioners of the Land Office to insert in the deed to be given to the applicants the terms and conditions proposed by the board of docks, and, therefore, the order appealed from is not shown to be erroneous.
All concurred.
Order affirmed, with ten dollars costs and disbursements.