397 



The only impediment suggested by a more matured con- 

 sideration of the questions involved in the case, and developed 

 by the discussion in the court below, refers to the technical 

 lien which the bondholders have to some extent upon all 

 park lands, and which may cast a shade — not upon the city's 

 title, for this is unquestionable, but upon its ability to extin- 

 guish the lien, by any shorter or more direct method than that 

 which has been provided by the law creating it. 



The Commissioners, in a former Keport, expressed the 

 opinion that the interests of the bondholders would be effect- 

 ual! > r protected, by placing the proceeds of sale in the hands of 

 the Commissioners of the Sinking Fund, for the redemption of 

 these bonds, and they are still of the same opinion. But if a 

 strict construction of this provision of law shall prevail, it may 

 be proper to consider whether any, and if so, what importance 

 is to be attached to the objection, and whether it is likely to 

 operate injuriously upon the market value of the property when 

 offered for sale. 



In the first place, it is to be observed that all the city's 

 property, including its small parks, City Hall, schools, and 

 engine houses, is pledged for the payment of its debts, includ- 

 ing the park debt ; but that, of course, the pledge can never be 

 enforced so long as the city is solvent, and facilities for taxation 

 are not withheld. Next, the law creating the park debt pro- 

 vides a mode of gradual payment by annual tax. This pro- 

 vision will certainly extinguish the debt at maturity, and it 

 can not, moreover, upon constitutional principles, be repealed, 

 or in any manner interfered with, so long as the debt, or any 

 part of it, exists. And lastly, if we may be allowed to suggest 

 so improbable an event as the city's inability to discharge its 

 legal obligations, it is certain that when a creditor proceeds to 

 foreclose his lien, he is always obliged, upon well-established 

 principles of equity, to exhaust his remedy against so much of 

 the pledged property as remains unsold, before he will be 

 allowed to resort to that which the pledger has previously dis- 

 posed of. Supposing, then, the bondholders lien upon prop- 

 erty on the east side of Flatbush avenue to remain after a sale 

 has taken place, they will, in case they shall be obliged to fore- 

 close it for the payment of their claim, be compelled to sell all 

 the small parks, with more than five hundred acres of valuable 



