Horton v. Andrus

ute violates section 10, article VIII of the State Constitution, which provides that no county, city, town or village shall be allowed to incur any indebtedness except for county, city, town or village purposes, in that it pledges the credit of the county of Westchester for the payment of the bonds issued to raise the funds necessary for the construction of the sewer. The bonds on their face purport to be the obligation of the county, and the fact that the county is ultimately to be reimbursed by the local assessments provided by the act cannot relieve it from its primary obligation to the holders of the bonds. Therefore, the statute does require the county of Westchester to incur a debt, and the question is whether that debt is for county purposes. We think that it plainly is. Usually sewers are constructed by cities or other municipal corporations. The reason for this, however, is not that the disposition of sewage is in its character so inherently a city or village function that it may not be undertaken by the state or by a county, but that ordinarily drainage districts are so small in area as to be included within the territory of a city or village and in a majority of cases comprise only a portion of such territory. It may happen, however, that the contour of the country is such that the drainage of a large territory, embracing within its limits several cities, towns and villages, must obtain a single common outlet. Such is the present case. A large part of the county of Westchester, including the towns of White Plains, Greenburgh, Scarsdale, East Chester, the city of Mount Vernon and part of the city of Yonkers, is to drain into this sewer. The whole of this territory, usually termed the Bronx-valley, drains into the river of that name, which is an insignificant stream. The density of the population in this area has so increased of late years that the river has become utterly inadequate to properly dispose of the sewage, and the health of the whole region is seriously menaced by its pollution. The scheme of the improvement is the construction of a trunk sewer to collect all this sewage and, instead of allowing it to flow into the Bronx, to divert it to the Hudson river, where the great flow

of water can successfully carry it off. The prosecution of this work could not be undertaken by any of the municipalities named alone, nor should the burden of its cost be imposed on any single municipality. The work was for the common benefit of áll. There is in this state no political subdivision or organization intermediate the county and the town or city. The legislature might have prescribed some special method of joint action between the several municipalities through which the sewer is constructed. But it was not obliged to take that course. On the contrary, it seems to us more in conformity with the general frame of the state government that the prosecution of a work which exceeded the domain of any one municipality should be conferred upon the next higher political organization which was capable of performing it and within whose territory lay the whole improvement. Usually roads, parks and sewers are the work of a municipality, but there are such things as county roads and we do not see why there may not be county parks and county sewers for the general benefit of the inhabitants of the county. The prosecution of such an improvement would be a county purpose. Moreover, the question is, to a certain extent, one of degree. An improvement which was solely for the benefit of a single municipality should not be imposed on the county. Such, however, is not this case, but the area sought to be drained is so great that failure to properly drain it may be well thought to threaten the health of by far the greater part of the inhabitants of the county. It was said in People ex rel. Murphy v. Kelly ( 76 N. Y. 475 ): “ The Legislature when legislating in view of this constitutional limitation, must determine in the first instance what is a municipal purpose. Its decision is not, however, final. When its act is challenged as in conflict with this constitutional limitation, the courts must determine whether debt is authorized to be incurred for a purpose not municipal. But as the dividing line between what is a municipal purpose and what is not is, in many cases, shadowy and uncertain, great weight should be given by the courts to the legislative determination, and its action should

not be annulled unless the purpose appears clearly to be one not authorized.” Clearly within this rule the statute must be upheld.

We see no force in the suggestion that the taxpayer is without opportunity to appear before the board of supervisors and be heard as to the apportionment of the assessment of the cost of the improvement between the several municipalities benefited thereby. The statute provides (sec. 14) that the apportionment or equalization shall be made by the board at the annual meeting after the dissolution of the commission appointed to constrnct-the sewer. This act, though local, is public, not private, and the taxpayers of the county are bound to take notice of it.

The order of the Appellate Division should be affirmed, with costs, and each of the questions certified answered in. the negative.

Gray, Vann, Werner, Willard Bartlett, Hisoook and Chase, JJ., concur.

Order affirmed.