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Hurlburt v. Banks

1 Abb. N. Cas. 157 Court N. Y. Supreme Court, Third Department; Special Term, English

Delivered by Westbrook, J.

Contents

Majority

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HURLBURT v. BANKS.
N. Y. Supreme Court, Third Department; Special Term,
November, 1876.
Again, Court of Appeals, December, 1876.

Headnote

Under L. 1873, c. 161,—which gives resident tax-payers a right of action to prevent waste or injury of municipal property,—a preliminary injunction may be granted.[1]
In an action to enjoin the city officers from issuing bonds of the city to raise funds by which a board of commissioners are to carry on a public work, the city itself and such board of commissioners are necessary parties.
But contractors, land owners, &c., who expect to be paid out of the fund sought to be raised, are not necessary parties.
The subject of a local act authorizing the creation of a municipal debt
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’ and the laying of local assessments to pay for acquiring a portion of a turnpike, and improving it as a city street, is sufficiently indicated by the title,—-“An act in relation to that portion of” the road, designating it particularly. It is not necessary to state the object, or the means.
The constitutional amendment of 1874,-—L. 1874, p.928, § 17; same provision, 1 R. 8 . 6th ed. 88, § 17,—which declares that “no act shall be passed which shall provide that any existing law or any part thereof shall be applicable, except by inserting it in such act,”—does not necessarily make void an act which contains such a provision. The remainder of the act may stand, if the defective provision is not so identified with the general scheme, that its elimination overthrows the plan.
In an act for the creation of a municipal debt, a provision that assessments for the repayment thereof shall be made as prescribed in existing laws referred to, without setting them forth at large, is not in contravention of that clause of the constitution.
The constitutional amendment of 1874,—-A. 1874, p.928, § 18; same provision, 1 R. 8 . 6th ed. 88, § 18,—forbidding local laws for “laying out, opening, altering, working or discontinuing roads, highways, or alleys, ” . . —does not apply to a case to which no general act can be applicable, —e. <j., the completion of the acquisition of a special approach to a city park.
Under the constitutional provision that every law imposing, &c., a tax, shall distinctly state the tax (Gonst. art. HI. § 20),—it is enough if the maximum limit is stated.
An issue of bonds to raise money to make immediate payment for a local improvement, to be reimbursed for by a subsequent assessment on the land owners benefited, is not in contravention of the constitutional prohibition against loans of municipal credit.
Motion for an injunction.
Elisha Hurlburt, Bradford R. Wood, and John Kirkpatrick, brought this action against A. Bleecker Banks, mayor of the city of Albany, William N. S. Sanders, chamberlain of the city of Albany, and Martin Delehanfy, clerk of the common council of Albany, for relief, under Laws of 1872, c. 161, to restrain the defendants from issuing bonds of the city of Albany to the amount of $185,000, pursuant to the provisions of chapter 445 of the Laws of 1876.
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The last mentioned act authorized the conveyance of a part of “The Great Western Turnpike,” by the company owning it, to the Albany park commissioners, to be paid for by the issue and sale of city bonds. The plaintiffs, as residents and tax-payers of the city of Albany, sought to enjoin the creation of this debt. Chapter 161 of the Laws of 1872, entitled “ An act for the protection of tax-payers against the frauds, embezzlements, and wrongful acts of public officers and agents,” by express language gives an action “to prevent waste or injury to any property, funds, or estate of such county, town, or municipal corporation, by any person residing in such county, town, or municipal corporation, assessed for and liable to pay taxes therein, or has paid'taxes therein within one year previous to the commencement of any such action or actions.”
The nature of the objections to the proceedings sought to be enjoined, appears in the opinion. The cause was elaborately and carefully argued at the Ulster special term.
Wood, Lawson, and Moak, for plaintiffs.
Colvin, Hale, and Barnes, for defendants.

[After referring to the above facts.]—As the remedy given is a preventive one, it seems to me that the very pith and object of the law are destroyed if it be construed simply to give a taxpayer a standing in court, and yet hampered by old decisions holding that an injunction to restrain illegal acts cannot issue. An act authorized by statute, which statute is repugnant to any constitutional provision, is a “wrongful” one; and as the law of 1872 confers upon a resident taxpayer the right “to prevent” such act, it is not perceived why such legislative provision has not swept away the cases which hold an injunction not to be an appropriate remedy (see

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Ayres and others v. Lawrence and others, 59 N. Y. 192 ).[1] It is true that if the act of 1876 be unconstitutional, it is possible that a defense may exist as to each bond when an attempt is made to enforce it; and yet such a course would lead to such a multiplicity of actions, so much cost, expense, and trouble, and be, also, owing to recent, decisions of the supreme court of the United States, when the bond presented should be in the hands of a bona fide holder, capable of suing in the federal courts, so uncertain in result, that it is safer and better to hold, as is now held, that the plaintiffs, if the theory of their action is correct, have this remedy.

The next question which this motion presents is, are the proper parties defendant before the court \ The decision of the matters involved in this action undoubtedly concerns the city of Albany, and the board of commissioners of the Washington Park. The former is interested not only in the improvement which the act contemplates, but its bonds are those sought to be enjoined. The defendants are its officers charged with the duty of such issue, but they have no personal interest in the question. If issued, the proceeds are to be used in making a city improvement, and the city alone is responsible for their payment. What is true of the city is also true, varying in details, of the park commissioners. They are charged with the duties of caring for the park, constructing its approaches, and making the particular improvement which the act contemplates. The proceeds of the bonds are to come into their hands, to be used for that purpose. If the injunction is granted, its effect is manifestly to stop and arrest a public work in which the city and the park commissioners are chiefly concerned, and it would seem to be but reasonable that they should have their

* S. C. below, 63 Barb. 454 .

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day in. court to be heard upon questions which affect them, and in which their agents, now alone prosecuted,, have no interest. It is true that the act of 1872, already referred to, allows an action to be brought against officers of a municipal corporation, who are about to-do wrongful acts; but whilst it allows them to be prosecuted, it has not repealed other statutes, nor declared that they are the only necessary parties to such action. Sections 118 and 122 of the Code are still in force. As, to use the exact language of the latter section, “a complete determination of the controversy cannot be had without the presence of other parties,, the court must cause them to be brought in” (Code, section 122; People v. Law, 34 Barb. 494 -509; S. C., 22 How. Pr. 109 ; Allen and others v. Turner and others, 11 Gray, 436 ). These parties clearly are the-city of Albany and the board of park commissioners. Individuals may also be interested, but not directly sons to make them necessary parties. For whatever grievances or rights they may have, they must look to-corporation in which they dwelt. If any have contracts with the city or the park commissioners, they must seek their remedy there. Contractors who expect their compensation, or persons who look for payment for damages sustained, out of a particular fund belonging to the individual with whom they made the-contract, or who has done them an injury, are certainly not proper parties to an action which affects a fund or means not theirs, and out of which they only expected to be paid. And so, also, if particular persons dwelling upon the avenue desire the work to proceed, their' dealings and remedies must be with and against the-city and park commission. To a greater or less extent, what is true of them is also true of every other taxpayer and resident of the city, each one of whom has' more or less interest in the work, and the making- of all parties would be simply impossible- All such are-
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represented by the city, and if that be made a party, all their rights are properly represented.

Having reached the conclusion that the act of 1872 and the provisions of the Code are not inconsistent, and that a proper adjudication and determination of the rights of all interested in the subject matter of this action require the city of Albany and the board of park commissioners should be made defendants therein, it would follow that the injunction asked should be refused. If, however, the plaintiffs are right in the .general object sought to be attained, they should not be defeated upon this technical ground, but an opportunity should be afforded to bring in all who are inter-' ■ested. To the real merits of "the action, then, the ■opinion will now be addressed.

The act—action under which is sought to be restrained—is contained in chapter 445 of the Laws of 1876, and is entitled “An act in relation to that portion of the Great Western Turnpike road, commonly known ,as Western avenue, lying between Snipe street, in the city of Albany, on the east, and the west line of the proposed new boulevard, intersecting the said road west of Allen street, in said city, on the west.” The ,act allows the turnpike company to convey to the park commissioners the portion of the road to which, in its title, it refers, but forbids its being closed, or the exclusion of the public from its use as a highway. It then places the grading, improvement and ornamentation thereof, in charge of the park commissioners, to "be paid for, in the first instance, by the issue and sale of the bonds of the city of Albany, which issue is Bought to be enjoined. It then provides for the payment of the principal of the bonds, by assessment upon the owners of the property fronting upon the proposed avenue, and out of the city at large, in case the fund obtained for that purpose from the owners of property shall be insufficient, the city at large, until the matur

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ity of the bonds, providing for and paying the interest. It is claimed by the plaintiffs that this law is unconstitutional and void for various reasons, which will be presently stated.

Preliminarily to a discussion of the constitutional questions involved, it should be stated that Washington Park, in the city of Albany, was authorized to be established by chapter 583 of the Laws of 1869. Various acts have been since passed which are amendatory and supplementary thereto, by which (chapter 377, Laws of 1870; chapter 45, Laws of 1873) approaches, among other things, could be made to the park, and streets already open, selected and taken for that purpose. That portion of the turnpike road which the act of 1876 refers to, had, previous to such act, and the recent constitutional amendments, been taken possession of by the park commissioners, and partially improved, under a lease executed' by the turnpike corporation, which corporation has existed for many years.

It is said that the law of 1876 is in conflict with article three, section sixteen of the constitution of this State, which declares: “No private'or local bill, which may be passed by the legislature, shall embrace more than one subject, and that shall be expressed in the title.” It being conceded, as it certainly must be, that the act in question is “local,” it is argued that the bill does embrace more than one “subject,” and that that is not “expressed in the title.” In determining this question, the exact word used—“subject,” must be borne in mind. The scope, the object of the bill need not be stated in the title, but the “subject,”—i.e., the thing legislated upon,—shall be disclosed,, and the act can embrace only that one. If it can be shown that the law covers more than one “subject,”—one thing— it is obnoxious to the objection made. What the act proposes to do with the “ subject” need not be stated in its title, nor the machinery to be put in operation

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therein disclosed. It is enough if the “subject” of legislation be stated. Webster, in his definition of the word “subject,” uses two quotations to illustrate its meaning. “This subject for heroic song;” “Make choice of a subject, beautiful and noble, which . . . . shall afford an ample field of matter whereon to expatiate.” The author of an essay, or lecture, in choosing and announcing Ms “subject,” does not ordinarily declare in its title Ms proposed treatment thereof, but he simply states upon what he is to write or speak, and he who would know more must read or hear, what is written or spoken upon that topic. Precisely this the framers of the constitution had in mind. The “subject ” of the bill should be expressed in the title, and that should be a single one, and he who wishes to know more, and to learn what is done, must read the body of the bill. His attention is to be drawn to the “subject” by the title, he is not to be deceived by legislation upon any other than the one so indicated, and if he then fails to use Ms senses, he alone is deceived.

This view of the constitutional provision is not a strained or novel one. In matter of Ferdinand Mayer ( 50 N. Y. 504 ), the court of appeals held: “ If the title of an act fairly and reasonably announces the subject, and that is a single one, and if the various parts thereof have respect or relate to that subject, the provision of the constitution that no local or private bill shall embrace more than one subject, and that shall be expressed in its title (State constitution, art. 3, § 16), is complied with. The degree of relationship of each provision is not material if it legitimately tends to the accomplishment of the general purpose. The general subject of local improvements includes not only the plan and construction of contemplated work, but the means by which the work may be accomplished, the proceedings necessary to be adopted for" assessing and paying the

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expenses, and the remedies to parties for redress of grievances arising out of their construction.”

And in People v. Briggs and others ( 50 N. Y. 553 -592), Church, Chief Justice, says: “In an act in relation to Lake avenue it would not be competent to insert provisions respecting Mount Hope avenue. As to such a bill, Lake avenue would be the subject. So in a bill in relation to education in the city, it would be improper to insert provisions in relation to street or police, unless they were in some way legitimately connected with the subject of education.”

Cases to the same effect can be multiplied indefinitely. See, among others, People v. Willsea ( 60 N. Y. 507 -509); People v. Dudley ( 58 N. Y. 323 ; aff’g 1 Hun, 102 ; S. C., 3 Sup’m. Ct. [T. & C.] 179); Harris v. People ( 59 N. Y. 599 -602); In the matter of Volkening ( 52 N. Y. 650 ); People ex rel. v. Havemeyer ( 47 How. Pr. 494 , 509; S. C., 4 Sup’m. Ct. [T. & C.] 365; and less fully, 16 Abb. Pr. N. S. 219).

An examination of the act of 1876 will, we think, show that it relates to but one subject, and that is the avenue, and the particular part thereof, referred to in the title. It is that which is to be conveyed, graded and improved; it is upon that which the money to be raised is to be expended, and every section and clause concerns this single subject. It is true, that all which the law requires to be done to the avenue is not stated, nor the machinery devised for that purpose disclosed in its title ; but the whole of it relates to' such avenue as the “subject” to and upon which legislation is directed. It is the “ subject” thereof (to borrow an illustration from the medical profession), as much as the person or body to be operated upon by the surgeon, may be said to. be his. This first objection cannot therefore prevail.

It is further objected that, as the act of 1876 provides that the assessment, which is to be made upon

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the owners of property fronting upon the avenue, shall be made as prescribed in certain other laws therein referred to, it is in conflict with article three, section seventeen, of the constitution, which declares : “No act shall be passed which shall provide that any existing law or any part thereof, shall be made or deemed to be a part of said act, or which shall enact that any existing law, or any part thereof, shall be applicable, except inserting it in such act.”

It is true, as defendant’s counsel urge, that it does not necessarily follow, if the part of the act of 1876, which makes this provision for the assessment, is invalid, that the whole act is therefore also void. It was so held in People v. McCann ( 16 N. Y. 58 ), and People v. Green ( 58 N. Y. 295 ). According to these cases, the remainder of the act might stand, even though the part which makes provision for the assessment should fail, provided such part is not so identified with the general scheme of the enactment that its elimination therefrom would overthrow the plan. The act is perfect without these provisions to authorize a conveyance of the road, to direct its improvement, to issue the bonds, and to provide for their payment by general taxation; but it is also apparent that the payment of the whole debt by the city at large was not contemplated by the law. On the contrary, the principal thereof is to be paid by owners of lots fronting on the road. This is a controlling feature of the statute, and if that is held invalid, it is obvious that the method of paying the costs of the contemplated improvement is destroyed, and by force thereof, the general scheme of the act. defeated. If this objection, then, be well-founded, it reaches the entire law, and must be so discussed. To meet the point fairly, we ask: Does the constitution mean that when a charter to a city has been given, and the mode and manner of taxation for municipal purposes defined, that a special law subse

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quently passed, authorizing money to be raised for specific purpose, and then providing that the same shall be assessed, levied and collected in the manner prescribed in the law giving the charter, that such act is void % Such a statute, certainly does not by its express terms “provide that any existing law, or any part thereof shall be made or deemed a part of said act,” not does it “enact that any existing law or any part thereof shall be applicable.” It is a law perfect to authorize a tax, and one which, without declaring any other law “a part thereof,” in fact, or “applicable” thereto, simply provides that certain well known and understood modes and forms of assessment which the city possessed, shall be used to obtain the money. If such an enactment' is void, our session laws must be incumbered to an extent which can scarcely be conceived. The clause of the constitution, which we are considering, should, when no apparent evil follows from so doing, have a strict reading, and not be strained beyond its exact words, which seem to me only to cover those cases in which, by the express language of the act, some other is made a part thereof, or is directly declared to be applicable thereto. The case with which we are dealing, certainly presents no evil within the spirit of the provision. It fixes a sum of money to be raised by a loan, directs the mode of its expenditure, and, when providing for the payment, refers to certain laws as the mode and manner of assessment. If the legislature should create a right of action, where none before existed, and should then declare that the mode and manner of procedure should be that prescribed by the Code, it would scarcely be claimed that such act was void, because the whole Code, containing several hundred pages, was not re-enacted section by section. The case put is the one before us. The machinery for taxation was devised and prescribed by the charter. A new tax is imposed, and the man
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ner of its assessment and collection is declared to be that given by the charter. Is it void % Should the charter again be re-enacted section by section, and must this be repeated again and again for all succeeding years, whenever the city needs a special act % And must the same reasoning apply to every village, city, town, and. county in the State, and to the State itself, when money is to be' raised by tax for any purpose whatsoever % It must, if the plaintiffs are right. Argumentwm ab inconvenienti plurimv/ni valet in lege A is a maxim which applies with great force to the affirmative of these positions. Cases may be supposed, in which the application of this constitutional provision would be wise and salutory. If a city is chartered the provisions relating to that of another should not be declared to be a part thereof, or applicable thereto, and many others of a similar character may be called to mind. But with the machinery of taxation, applicable to a locality, once provided, no reason is seen making it necessary, when a tax is imposed for any purpose, to re-enact every provision as to its assessment and collection. No such requirement is reasonable, and not only the inconvenience of such a rule, but its impossibility, when applied to practical legislation, compel us to hold that this law is not void on account of the objection we have just considered.

It is further urged that article three, section eighteen, of the constitution applies, which declares that, “ The legislature shall not pass a private or local bill in any of the following cases.....Laying out, opening, altering, working or discontinuing roads, highways or alleys, or for draining swamps or other low lands.”

Is this part of Western avenue, which had, previous to the act of 1876, and this constitutional amendment, been selected as an approach to the park, and already leased to the park commissioners, either a road, high

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way, or alley, in the sense these words are used in the constitution? It is a highway, undoubtedly, in a general sense, but it can scarcely be deemed one of these of which the constitution speaks. That refers to the ordinary “roads, highways, or alleys,” the manner of opening, working, altering or discontinuing which can be readily provided for by general law. No general law applicable to this case can be passed; and it is manifest, as the same section after provides that “ The legislature shall pass general laws providing for the cases enumerated in this section,” that this section of the constitution can not, and does not, prevent a special act being passed in relation to a road leading to or passing through a park of any city, the provisions of which must always be in accordance with the particular plan in each case.

Neither is the law, in my opinion, obnoxious to any objection founded upon article three, section twenty of the constitution, because it fails “to distinctly state the tax.” It does state the tax; it cannot exceed $185,000. It does not, it is true, require the commissioners of the park to expend the whole of that sum ; but they must use so much as the work authorized shall cost. Must an appropriation in every case state with precision the exact cost of the work to be done ; and if it fails so to do is the law void ? What this law declares in words, every other, directing money to be raised for a particular purpose, does practically, without so declaring. Only so much, in any event, of an appropriation made can be legally expended as the object proposed costs. More than this is illegal, though not so expressly enacted in the law; and I fail to see that an expression in language of a thought which must always in a similar case, be understood without expression, can avoid the law which so specifically declares.

It is also argued that article eight, section eleven of the constitution is contravened by this act. That pro

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vision declares : “No county, city, town or village shall hereafter give any money or property, or loan its money or credit to or in aid of any individual, association or corporation, or become, directly or indirectly, the owner of stock in, or bonds of any association or corporation, nor shall any such county, city, .town or village, be allowed to incur any indebtedness, except for county, city, town or village purposes. This section shall not prevent such county, city, town or village from making such provision for the aid and support of its poor, as may be authorized by law.”

The reasoning employed is as follows: It is the duty of the persons owning property upon the avenue to bear the cost of the improvement—it is their debt—and while the act recognizes this by requiring them in the end to pay it, the city advances for them the money in the first instance, and then at the end of five years receives back the amount from them without interest. The same argument would invalidate every law which authorizes any “ county, city, town or village,’’ to borrow money for any purpose. The objector would argue, the taxpayers of such “ county, city, town or village” should pay this money which is to be raised by a debt created by the municipality—it is their debt—and, therefore, the credit of such municipality is loaned to individuals, who then only pay after a lapse of years, instead of paying immediately what they owe. The error of the reasoning is in the premise. Neither in the case before us, nor in the one supposed, is the debt to be paid or liability to be extinguished, that of the individual taxpayers, but of the municipality. The corporate body in the end only discharges its own obligations by a tax upon its taxpayers, assessed either locally or generally, and in such proportions as the law shall provide.

If in this case the city of Albany compels a locality to pay the principal of a loan, and the entire commu

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nity the interest, neither the credit of the municipality nor its money has been loaned, for it has in the first place but paid its own liabilities; and then apportioned the debt it has incurred in so doing among the various taxpayers as the law provided. The original work upon the road was done for the city, the liabilities therefor were its liabilities, and the bonds to be issued are to be so issued to extinguish its own indebtedness. The assessment to be made upon owners of property fronting upon the avenue is simply a tax upon them to pay the city indebtedness, levied upon them in a larger proportion than others, because they are more benefited than such others by the improvement. The fact that they pay a larger share of the city debt incurred in the improvement of the avenue, makes them no more original debtors for the work than other taxpayers, who likewise bear a portion of the burthen, though in a less degree, because by the original expenditure of the corporation they were less benefited.

We have now examined in detail the various objections which have been made to the act of 1876, and are constrained to overrule them all. It is a grave responsibility for any court to hold that a law passed in accordance with the forms of the constitution is invalid, because in its provisions it violates that instrument. That duty would not, however, be evaded in a clear case ; but such an one is not, in our judgment, now before us. On the contrary, whilst the questions are interesting and novel, we think that no part of the fundamental law has been violated, either in its letter or spirit. With the objects and purposes of the act we have been considering, and the policy thereof, we have nothing to do. These questions belong to the legislative department of the government. When that has only exercised its constitutional perogatives, it cannot be interfered with, because courts differ from it as to the policy of legislation. If the law is unwise, impolitic, and bur

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densome, though not unconstitutional, the legislature must correct it. Courts are powerless.

The injunction asked for is refused, with ten dollars costs of motion. .

By consent, in order to present the questions involved speedily to the court of appeals, an order for a peremptory mandamus compelling the mayor to issue the bonds, was granted at special term by Westbrook, J., affirmed pro forma, next day at general term ; and on appeal to the court of appeals, that court, in Dec., 1876, affirmed the order for a peremptory mandamus, and sustained the conclusions contained in the foregoing opinion, as to the constitutionality of the law directing the issue of bonds for the improvement.

Cases cited