In re the Board of Public Works

Whether this order was void for want of jurisdiction in the court to grant it is the main and principal question argued by the appellants. The charter of the city of Watertown, as amended, (Laws of 1886, chap. 162), provides, among other things, for the opening of new streets and the taking of lands for the same, and vests authority and power for that purpose in the common council. (§§ 7 and 8.) Hpon the application of that body commissioners are appointed to take the necessary lands and assess the damages, whose report, after confirmation by the Special Term, is made final and conclusive. If this had been a proceeding under the statute referred to by the common council to open the new streets we should regard the order of the commissioners which has been confirmed as beyond our review upon a direct appeal therefrom. (In re Prospect Park & Coney I. R. R., 85 N. Y. 489 ; In re Southern Boulevard R. R. Co., 141 id. 532 .) But the proceeding originated, not from the action of the common council or the exercise of their authority. They were superseded, to some extent at least, by the board of public works created by new and later legislation. (Laws of 1891, chap. 180.) That board instituted this proceeding and has conducted it upon the assumption that all the powers and all the regulations of the charter relative to the' opening of new streets were duly and completely transferred to it. If that be true, then it may avail itself of all the provisions of section seven, among which is the enactment making the confirmed order of' the commissioners final. But the claim here is that none of those provisions regulating procedure and adjudging its finality apply at all to the board of public works so far as opening new streets is concerned, and that to rest upon the statutory conclusiveness of the order begs the very

The necessary power was conferred upon the common council by language often used for that purpose. To such body was given the authority of commissioners of highways of towns, “ with the exceptions and modifications ” thereinafter prescribed. One of those modifications was a distinct enlargement of the authority conferred by including within it power to lay out and open streets. The common council were made town commissioners, but with an enlarged authority. The act of 1891, (§ 9), organizing the board of public works, prescribes that the board “ shall have all the powers and discharge all the duties of commissioners of highways of towns as given by and with the exceptions and modifications” contained in the amended charter. The effect is that the enlarged authority of the common council is, by the same description and an identical phraseology, transferred to and conferred upon the board of public-works. The intention to make such a substitution as to the general control of city streets is manifest from the single exception stated, by way of precaution, that the broad terms of the transfer should not divest the common council of its authority to dictate the conditions upon which raihoads should be permitted to pass through the city streets. It further appears in the clause which gives to the board exclusive control of the construction, improvement, repair and cleaning of streets. Construction is a broad term authorizing the making of new streets; improvement permits new woik upon streets already constructed; and repair relates to the restoration of an existing condition. The four terms used .cover the whole subject, from the making of the new street to its final and ordinary maintenance. The general scope of the act is entirely consistent with the view that the whole authority over the construction and care of streets given to the common council was intended to be transferred to the

All concur, except O’Brien and Haight, JJ., not sitting.

Order affirmed.