People ex rel. Morrell v. Board of Supervisors — 15 N.Y. St. Rep. 860

Majority

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The People ex rel. John S. Morrell v. The Board of Supervisors of Queens County.

(Supreme Court, General Term, Second Department,

Filed May 14, 1888.)

Headnote

1. Taxes and assessments — Legislative powers-^ Power of local LEGISLATION MAY BE DELEGATED—N. Y. CONSTITUTION, ART. 3, SECTION 33.

The power of the legislature over taxation in this state is absolute, and by the state constitution, article 3, section 33, the legislature is authorized by general law to delegate such power of local legislation as it may deem expedient from time to time to the board of supervisors of the respective counties.

3. Highways—Improvement of—Powers of boards of supervisors— Laws 1869, chap. 855.

By the provisions of Laws 1869, chapter 855, unlimited power is conferred upon the boards of supervisors for the improvement of any highway laid out in pursuance of law, and for apportioning the expense of any public road or bridge upon such towns as may be just. Held, that under that law the determination of the justice of any apportionment of the expenses of an improvement may be left to the board of supervisors, subject to no judicial control.

This is a writ of certiorari to review the legality of a tax imposed by the board of supervisors of Queens county on the town of North Hempstead.

Thomas Young, for relator; James W. Covert, for deft’s.

—Jackson avenue is a public highway in Queens county, and is a public thoroughfare for the people

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of several towns on Long Island, including North Hemp-stead, Flushing and Newtown. On the 10th day of February, 1887, the board of supervisors of the county of Queens passed a resolution for the improvement of that portion of the avenue lying in the town of Newtown, the expense of which was not to exceed the sum of $30,000, which was to be assessed upon the towns of Newtown, Flushing and North Hempstead, and the legality of that resolution is now challenged by the relator in this proceeding which is instituted to review the proceedings and set aside the tax imposed upon the town of North Hempstead to pay and discharge the portion of the expenses of the improvement assessed against that town.

The action of the board of supervisors which is brought in question now, is justified by the second section of chapter 855 of the Laws of 1869, which clothes the boards of supervisors of the several counties of this state, with two exceptions, with power to provide for the use of abandoned turnpike, plank, or macadamized roads, within any town as public highways, and for the improvement of any public highway laid out in pursuance of law, and for the location, erection, repair or purchase of any bridge, except over navigable streams, and for apportioning the expense of any public road or bridge upon such towns as may be just; and for the borrowing of money by any town or towns, or by the county, for the purposes aforesaid, or for general purposes in anticipation of taxation for such purposes authorized by law, but jurisdiction in the cases enumerated cannot be exercised without the assent of two-thirds of all the members of the board by yeas and nays, and no special ordinance relating to one town or ward, only shall become operative unless it shall receive the affirmative vote of the supervisor representing such town or ward.

The power of the legislature over the subject of taxation is plenary and absolute in this state, and the passage of the law in question was an exercise of sovereign power which is subject to no review by the judicial tribunals.

By the constitution of the state the legislature was authorized to delegate, by general laws, such powers of local legislation as it might deem expedient from time to time, to the boards of supervisors of the respective counties, and the extent of the powers so to be delegated was left unbounded by the fundamental law, and was to be fixed by the legislature in its discretion. Article 3, § 23.

The resolution for the improvement of Jackson avenue, now under review, seems to be an exercise of the power of local legislation conferred upon the boards of supervisors by the law of 1869, which bestows unlimited power for the improvement of any highway laid out in pursuance of law, and for the apportioning of the expense of any public road or bridge upon such towns as may be just, and under that

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law the determination of the justice of any apportionment of the expenses of an improvement is left to the board of supervisors subject to no judicial control.

We find the action of the board of supervisors, legal and proper, and the proceedings should be confirmed with costs.

Barnard, P. J., and Pratt, J., concur.