United States ex rel. Crupper v. Newman

Mr. Chief Justice Smyth delivered the opinion of the Court: Did the answer, coupled with the undenied allegations of the [349] petition, state1 a defense? Tlie act- of Congress requires two steps. Stated in tlie inverse order of the ae.t, they are: First, that the Commissioners determine whether or not a part of a designated business street is not needed in their judgment by the general public; and, second, if not, then, and not before, regulations are to be published governing the use of such part by the abutting property owner. Unless they determine that the part is not needed by the public ami that the property owner may use it. there would be no occasion for regulations, since there would be no use by the owner to regulate. Whether or not the space or part in question is needed by the public is a question committed by the Congress to the judgment of the Commissioners, and not to the judgment of tint courts. It results that the courts cannot say what the judgment shall be. United States ex rel. Riverside Oil Co. v. Hitchcock, 190 U. S. 316, 47 L. ed. 1074, 23 Sup. Ct. Rep. 698; Marquez v. Frisbie, 101 U. S. 473, 25 L. ed. 800; United States ex rel. Dunlap v. Black, 128 U. S. 40, 32 L. ed. 354, 9 Sup. Ct. Rep. 12. The burden of appellant’s argument is that the act vests no discretion in the Commissioners, and that the duty imposed upon them thereby is mandatory. What duty? Perhaps the duty to make regulations after adjudging that the space was not needed by the public; but certainly not the duty to decide, irrespective of their view of the facts, that the space was not needed. That was left to their discretion. The language of the statute itself makes this conclusion inevitable. It says that the Commissioners shall “authorize the use of such portions of streets * * as may not be needed, in the judgment of said Commissioners, by the general public.” Thick stress is laid by appellant upon the word “directed” in the statute. It is said that it is mandatory. Perhaps this is so in so far as it relates to the duty of nominating portions of the streets as business streets, and to authorizing the use of parts thereof under proper regulations after the Commissioners have determined that such use is not needed by the public. But it docs not follow that, because the word has an imperative significance in one connection, it has the same significance when coupled with words importing discretion, such as those in the [350] present case committing to the judgment and discretion of the Commissi oners the question as to whether or not a given part of the’parking in a street is needed for the public. This is well illustrated by a decision of the Supreme Court of the Hnited States construing the charter of a canal company, which empowered and directed the company to enter into a certain contract. The court held that the word “directed” was permissory, not imperative, saying: “The word, if standing alone, might imply something mandatory to the company; but it must l)e taken with the context, and the general scope and object of the provision, in order to ascertain the intention of the legislature.” Binney v. Chesapeake & O. Canal Co. 8 Pet. 201, 211, 8 L. ed. 917, 920; see also Fields v. United States, 27 App. D. C. 433, 440; Upshur v. Baltimore, 94 Md. 743, 51 Atl. 953; Clemens Electrical Mfg. Co. v. Walton, 168 Mass. 304, 47 N. E. 102; Hoole v. Kinkead, 16 Nev. 220; Nixon v. Grace, 98 Ark. 505, 136 S. W. 670; State ex rel. Dorian v. Taylor, 208 Mo. 442, 10 S. W. 1023, 13 Ann. Cas. 1058; Cairo & F. R. Co. v. Hechl, 95 U. S. 168, 24 L. ed. 423. If mandatory, to what part of the duty imposed does it apply, — the duty to decide, or the duty to decide in a certain way? Certainly not the latter. Having found that, if there is any imperative duty imposed by the act, it arises after the Commissioners have decided that a given part of the parking claimed is not needed, we conic* to inciuire whether they have so decided in the present case. Appellant alleged that no part of the parking in controversy was needed by the public, and insists that the Commissioners so admitted. We do not think they did. But, on the contrary, we think they have decided that if is needed. They say this, in answering the charge of relator that it is not needed by the public: “That in the judgment of the defendants it is for the best interests of the public comfort, health, and convenience, as above set forth, that there should he no further encroachments upon public space beyond the limits of the regulations already in force and above referred to.” This is equivalent to saying that they have decided that the space is needed by the public for the purposes indicated, all of which are public purposes. [351] Appellant reasons as if tin' statute said that, unless the space desired by him was required for a walk or street by the public, the Commissioners must set it apart for his use. Hut the statute does not bear that interpretation. It does not limit the public need to any particular thing'. If required in the judgment of the Commissioners for parking, beautifying, safety of travelers, or sanitation, it is needed by the general public within the meaning of the statute1; and because, as we have said before1, the statute! commits the decision of the matter to the Commissioners, we have no authority to review their action. The judgment is affirmed, with costs. Affirmed.