People ex rel. Morrell v. Board of Supervisors

regulations as may be necessary for the common good. But., the legislature, unless restrained by constitutional limitations, may resume powers delegated to towns, cities and. counties, and assume the direct control of matters pertaining to local government. This principle was applied in the case of highways in People ex rel., etc. v. Flagg ( 46 N. Y., 401 ), which adjudged that it was competent for the legislature by special act to authorize and direct the laying out. and improvement of highways in certain towns in the county of Westchester, and to provide that the money required to meet the expenses to be incurred, should be raised by the sale of town bonds of the respective towns, to be issued as specified in the act. The act under consideration in that case was passed prior to the adoption of the constitutional amendment in 1874, which, among other cases specified, prohibits the legislature from passing any private or local bill, “laying out, opening, altering, working or discontinuing roads or highways.” Section 18, art. 3. But section 23 of the same article authorizes the legislature to enact general laws conferring upon boards of supervisors “such further power of local legislation as from time to time it may deem expedient.” The effect of the amendment was to take from the legislature the power it theretofore possessed, to pass laws laying out, altering, or working highways, operating independently of the local authorities and by their own force, while at the sanie time it preserved to the legislature the power to vest in boards of supervisors within their respective jurisdictions, the same' powers in respect to laying out, opening and working highways, which the legislature could itself no longer directly exercise.

The constitutional amendment of 1874, did not abrogate-the pre-existing power of the legislature oyer the subject. It simply transferred it to the local boards, in case the legislature should deem it expedient and should so enact.

The bpard of supervisors by the ordinance and proceedings now under review, directed the improvement of that part of Jackson avenue within the limits of the- town of' Newtown, in a certain manner specified at an expense of' S30,000, and directed the expense to be assessed upon the three towns of Newtown, Flushing and North Hempstead, in certain proportions, and that the portion of tke_ avenue so directed to be improved, should thereafter be maintained, and kept in repair by those towns.

Jackson avenue was an existing highway, passing through the three towns mentioned, and the town of North Hemp-stead, of which the relator was a resident and taxpayer, is separated from the town of Newtown by the intervening town of Flushing. The legistature prior to 1875, might have directed the improvement of Jackson avenue and

apportioned the expense between the several towns, as was done by the board of supervisors. Such legislation prior to 1875, would have been subject to no constitutional objection.

The Case of The People ex rel. v. Flagg (supra), is we think decisive of that question. The power of the legislature over the subject was not limited by town lines, nor was its power to distribute a tax for the payment of the expenses of laying out or improving a highway, necessarily confined to the precise territory in which the expenditure was made. Towns through which the same highway runs which furnishes access to market, may all be interested in its improvement at any point. But as we have seen, the legislature while now prohibited from enacting a law, laying out, opening, or working highways, by force of the amendment of 1874, may nevertheless confer the power it before possessed upon boards of supervisors. We have thus far assumed that since the constitutional amendment of 1874, the legislature could not by special act have authorized the improvement in question. This is denied on the authority of People ex rel. Comrs. v. Banks ( 67 N. Y., 568 ).

Such an act would not it is claimed be a law for working, a highway, within the constitutional prohibition. But, however this may be, it was competent for the legislature under the authority given by the twenty-third section, to delegate the power to boards of supervisors. The only question, therefore, we have to consider is whether the legislature has conferred upon the supervisors of Queens county the power to enact the ordinance in question. We think this has been done by the second section of chapter 855, of the Laws of 1869, entitled, “an act to extend the powers of boards of supervisors, except in the counties of New York and Kings."

The first section of the act empowers boards of supervisors, with the consent of town officers, to authorize the supervisors of any town to borrow money on the credit of such town, “ to build or repair any road or roads, or bridge or bridges in such town, or which shall be partly in such town and partly in an adjoining town,” and to prescribe the form of obligation to be given for the loan, and to impose a tax on the town to pay the sum borrowed. This section seems to have been enacted to obviate the necessity of applying to the legislature when a larger sum is needed by a town for the building or repairing of roads or bridges tiian is authorized to be raised under the general statutes relating to highways or bridges.

The second section authorizes boards of supervisors “ 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 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.” But the exercise of the powérs conferred by the second section is freed from the restriction imposed on proceedings taken under the first section, that the consent of town officers must first be had, and in lieu of such restriction, it is provided that the powers conferred by the second section can only be exercised with the assent of two-thirds of all the members elected to the board, and where the ordinance relates to one town or ward only, it shall not become operative unless it receives the affirmative vote of the supervisors representing such town or ward. ■ The public interests may require the improvement of a highway in a single town, or one passing through several towns, but involving an expenditure which the particular town or towns would refuse, or not be disposed to incur. All the people of the county are interested in the maintenance and improvement of the great thoroughfares of travel within the county. The same may be true in respect of bridges and the restitution of abandoned highways. It was, we think, the obvious intention of the legislature in conferring the powers granted by the second section to permit the board of supervisors on its own motion, under the restrictions specified, to provide for these public interests ■and to apportion the expenses .upon one or more towns, “ as may be just,” and this, although the expenditure may lie wholly within one town, but on a highway which is -common to several towns.

The only point we can consider is that of the power of the board of supervisors of Queens county to pass the ordinance in question. It received the affirmative vote of the supervisor of Newtown, although that is not probably a material circumstance in this case. We are of opinion that the board of supervisors had power to pass the ordinance. The amendment to the act of 1869, made by chapter 285 of the Laws of 1872, does not affect the question. It was an amendment of the first section, and in no respect changed or qualified the second section.

We think no error was committed below, and the order appealed from should therefore be affirmed.

All concur.