Kittinger v. Buffalo Traction Co.

Plaintiff, as a taxpayer, seeks to maintain the action, and by means thereof to prevent waste of the property of the city of Buffalo. In Adamson v. Railroad Co., 89 Hun, 261 , 34 N. Y. Supp. 1073 , it was held:

“A city has no power to alienate or appropriate the city streets, and has no property rights therein, and the provision of the statute authorizing an action to prevent a waste of the estate and other property of a municipality refers to property owned by the city, and within its power of disposition.”

In that case it was held that the legislation which authorizes a taxpayer to maintain an action to prevent waste was not intended to enable a taxpayer to maintain an action “against the members of a common council in a city, and the administrative officers thereof,

“We have quite recently declined to become arbitrators between taxpayers and their municipal officers in every instance of disagreeing opinions or conflicting judgments, and have decided that, jurisdiction in the officials existing, the courts can interfere in actions like that before us only where some fraud or collusion or bad faith is alleged and proved.”

In Potter v. Collis, 19 App. Div. 392 , 46 N. Y. Supp. 471 , it was held, viz.:

“The power of the legislature, unless restricted by the constitution, is absolute over the property held by a municipal corporation for public use, and it may grant to a railroad company the use of its streets.”

And it was further held that, in an action authorized to be brought by a taxpayer —

“It must appear that the act complained of, or which the taxpayer seeks to restrain, is an illegal official act, or the action must be one to prevent waste or injury to, or to make good, property, funds, or estate of the municipal corporation.”

And it was further held in that case, viz.:

“The fact that an applicant to a city commissioner of public works for a permit to excavate streets and avenues, in order to change the motive power of a railroad, also needs a permit from the board of electrical control, does not make illegal the act of rne city commissioner of public works in granting the permit.”

In that case the taxpayer’s application for an injunction was denied, and the right of a taxpayer to maintain the action, upon the facts of that case, was denied.

In Kellinger v. Railroad Co., 50 N. Y. 209 , Church, C. J., in referring to the decision of People v. Kerr, 27 N. Y. 188 , says that it was held “that legislative authority to construct a railroad on the surface of the streets, without a change of grade, was a legitimate exercise of the power of regulating public rights for public uses, and that the city was not entitled to compensation, because it had, as a corporation, no property which was appropriated.” We are of the opinion that the complaint fails to state facts sufficient to warrant a taxpayer to maintain the action for the relief sought in the complaint in this action. We must therefore reverse the interlocutory judgment, and sustain the demurrer to the complaint.

Interlocutory judgment reversed, with costs, and the demurrer sustained, with leave to the plaintiff to amend upon payment of the costs of the demurrer and of this appeal. All concur, except WARD, J., dissenting.

The complaint alleges that the plaintiff is a citizen of the city of Buffalo, N. Y., and a resident of the said city; that he owns real estate in said city, and that his assessment for taxes upon said real estate amounts to more than $1,000, and that he has been assessed and has paid taxes upon said assessment within one year previous to the commencement of this action; that the defendant the city of Buffalo is a municipal corporation, duly organized and existing and exercising the functions of such municipal corporation under and pursuant to the laws of the state of New York, and that it is a city of the first class; that the legislative power of the city of Buffalo is vested in a common council, which consists of the board of couneilmen and the board of aldermen;

that the defendant Edgar B. Jewett is the mayor of the city of Buffalo; that the defendant the Buffalo Traction Company is a domestic street-surface railroad corporation organized and existing by virtue of the laws of the state of New York; that it was incorporated on the 28th of October, 1895, and was organized for the purpose of building street-surface railroads exceeding 64 miles in length through various streets and avenues in the city; that such streets and avenues embrace nearly all the streets and avenues in the city of Buffalo not already occupied by street-railroad tracks, and which are in the thickly settled parts of the city, together with all the important streets of the city not already occupied with railroad tracks; that, if the said defendant should be allowed to build in said streets, it would result in incumbering the same with railroad tracks, trolley poles, and wires, and obstructing and hindering the ordinary course of travel, and the use of such streets for the public, and would be a nuisance; that the traction company—which will hereafter be called the defendant—had applied to the board of railroad commissioners of the state of New York for its certificate that public convenience and a necessity required the construction of its railroad in the city of Buffalo; that the railroad commissioners had refused such certificate; that the defendant had applied to the com"mon council of the city of Buffalo for its consent to lay the tracks and operate the railroad of the defendant upon the streets of the city; that such consent to the defendant to construct, maintain, and operate said street-surface railway in the said streets and avenues and public places of the said city was voted by the said common council “wrongfully, willfully, and corruptly, in violation of their official duties to the said city and its taxpayers, and in waste of the property, funds, effects, and estate of the said city, solely in order to favor the said defendant railway company, the persons who are incorporators and stockholders thereof and interested therein, and for their own personal benefit; and that in making the said grant they colluded with such persons, with intent to cheat and defraud the said city out of a large part of the value of the franchise to said city, and to confer the benefits thereof upon the said defendant railway company and said other persons, instead of upon said city and its taxpayers; and that they acted with undue haste and improvidence, and in reckless disregard of all proper safeguards and of the city’s interest”; that the defendant procured the passage, by the legislature of this state, of chapter M9 of the Laws of 1896, which was a curative act, intended to relieve the defendant from obtaining the consent or certificate of the railroad commissioners, and for other purposes; that said act was not properly passed, and was void; that, while it assumed to be a general act, it' was, in fact, intended to be and was a local act, which had never received the sanction of the mayor of Buffalo, as required by the constitution of this state. The complaint is very voluminous, contains many allegations of fraud and misconduct and illegality on the part of the city authorities of Buffalo and of the defendant, whereby the valuable rights, title, and privileges of the city in its streets were illegally and corruptly lost and wasted, to the loss, injury, and damage of the taxpayers of the city and the plaintiff. The defendant the traction company interposed a demurrer to this complaint: First, that there was a defect of parties defendant, naming them; second, that the complaint did not state facts sufficient to constitute a cause of action.

The learned counsel for the appellant presents hut the single point upon this review, viz. that the complaint does not state facts sufficient to constitute a cause of action, and it is defective in this respect: that it is brought under section 1925 of the Code of Civil Procedure to obtain a judgment preventing waste of or injury to the estate, fund, or other property of the city of Buffalo, and that the only waste or injury is the alleged wrongful, willful, and illegal giving of the consent by the municipal authorities of the city of Buffalo to the defendant; and he claims that, although the title to the streets sought to be appropriated by the defendant’s railroad is in the city, it holds such title simply as trustee for the people of this state, and the appropriation of such streets by the defendant

“The terms ‘waste and injury,’ used in this statute, comprehended only .illegal, wrongful, or dishonest official acts, and were not intended to subject the official action of the board, officers, or municipal body, acting within the limits of their jurisdiction and discretion, but which some taxpayer might conceive to be unwise, improvident, or based on errors of judgment, to the supervision of the judicial tribunals.”

But that case seems distinctly to hold that, where the acis complained of are without the power of the defendant, or where corruption, fraud, or bad faith amounting to fraud is charged, the action may be maintained. In Adamson v. Railroad Co., supra, the question did not arise upon demurrer, but there was a trial, and upon the facts there disclosed it was held, Judge Brown pronouncing the opinion of the court, that the taxpayers’ action could not be maintained, as the acts complained of were legislative acts of the municipality, within its discretion, and which could not be supervised by the courts. And in Parfitt v. Ferguson, 3 App. Div. 176 , 38 N. Y. Supp. 466 , which was a taxpayers’ action, where fraud and illegality were charged, Judge Brown, pronouncing the opinion of the court, sustains the view that a taxpayer may maintain the action on the ground of illegal official acts, although those acts may not cause an immediate waste of the funds of the municipality. To the same effect is Ziegler v. Chapin, supra. In Case v. Cayuga Co., supra, the action was to restrain the board of supervisors of that county from granting the consent of the county to the building of a street railroad in a street which passed along in front of the county buildings, the county being an abutting owner, but having no interest in the fee of the street. The discussion of

As we have seen, the complaint in the case at bar distinctly charges corrupt, wrongful, and illegal action as the gravamen of the cause of action, and, that being so, the action is maintainable, because the corrupt, illegal, and fraudulent action of municipalities, where injury results to the plaintiff, is always a subject of cognizance and determination by the courts. The appropriation of the streets of the city of Buffalo not already occupied by street railways for the purposes of the appellant, interfering, as it necessarily must, to a considerable extent, with the free use of the streets by the public, and inconvenience to the abutting owners, and the loss to the city of a valuable franchise, should be legally and honestly done, and the rights of the public carefully guarded, and the taxpayers of the city have the right to know whether every step taken to secure that appropriation was in accordance with law. The allegations in this voluminous complaint must be regarded as true in the disposition of the questions raised by the demurrer, and they disclose such a state of things surrounding the obtaining of this consent as connected with the municipal authorities and with the defendant that it demands the careful scrutiny and determination of a court and a jury.

The interlocutory judgment appealed from should be affirmed, with costs, with leave to the defendants to answer upon the payment of such costs within 20 days.