Town of Kirkwood v. Newbury — 34 N.Y. St. Rep. 546

Majority

p. 546

The Town of Kirkwood, App’lt, v. David Newbury et al., Resp’ts.^[1]

(Court of Appeals, Second Division,

Filed December 9, 1890.)

Headnote

Highways—Bridges.

The board of supervisors may upon application of one of two towns in the same county, separated by a stream, and against the wishes of a. majority of the voters as expressed in town meeting and without the consent of its officers authorized to consent, direct the building of a highway bridge across such stream and levy a tax upon taxpayers of the latter town, to defray in part the expenses of building such bridge.

Appeal from a judgment of the general term of the fourth judicial department, affirming a judgment of the supreme court enter

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ed on a decision of the court on a trial at the Broome county special term without a jury.

The appeal is based upon the judgment roll alone and brings up questions of law only.

Tire facts found upon the trial are briefly these: the towns of Kirkwood and Conklin are adjoining towns in the county of Broome and are separated by the Susquehanna river. March 19th, 1886, the board of supervisors of the county of Broome passed a bill (No. 39) authorizing the construction of an iron bridge across the Susquehanna river between said towns, the issuing of bonds to raise tlie money with which to pay for the same, and appointing the defendants commissioners of the town of Kirkwood, who were to co-operate with the commissioners appointed for that purpose by the town of Conklin.

This bill was passed on the application of the town of Conklin alone, regularly made at a special town meeting for that purpose.

The town of Kirkwood had previously voted at a regular town meeting, by a majority vote, not to join in or to apply for the building of said bridge and opposed the same.

Previous to said application by the town of Conklin there was no highway in the town of Kirkwood leading to the proposed site of the bridge and the board of supervisors by proper proceeding authorized the laying out of a highway in the town of Kirkwood to connect with that already laid out in the town of Conklin. No application for the bridge had ever been made to the town officers or voters of Kirkwood and no bridge had previously existed at the site upon which this bridge was proposed to be built.

On May 19th, 1886, and a few days after the commencement of this action, the legislature, by chapter 419 of the laws of that year, legalized, ratified and confirmed the action and proceedings taken in this matter by said board of supervisors.

The complaint only seeks to restrain the issuing of the bonds upon the town of Kirkwood for its proportion of the expense for the bridge. An injunction was granted at the outset of the action but was vacated before the action was tried and the order vacating it was not appealed from.

Alex. A. W. Cummings, for app’lt; Cooky, Sand & Fish, for resp’ts.

The main question in this caséis whether the board of supervisors, under the existing law of this state, may, upon application of one of two towns in the same county, separated by a stream, and against the wishes of a majority of "the voters as expressed in town meeting and without the consent of its officers authorized to give consent, direct the building of a highway bridge across such stream and levy a tax upon taxpayers of the latter town to defray in part the expense of building such bridge. The court below held that the board of supervisors of a county so situated had such power.

The question is one of sufficient general interest and importance to receive the sanction or dissent of this court, notwithstanding the bridge has been completed and paid for by the levy

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ing and applying the taxes raised for that purpose in part from the town objecting to the project while this action brought to test that question has been pending.

We think the judgment of the court below in this case should be affirmed, and in view of the able and elaborate review and construction of the various statutes involved in this case when it was before the trial court, it will not be necessary or advisable to extend the discussion to any considerable length.

I cannot think it necessary to cite authorities in support of the proposition that originally and as one of the attributes of a sovereignty, the power to lay out highways and to build bridges connecting them over streams, for the use of the public, and to levy taxes for that purpose, inheres in the law-making power of the state.

The law-making power may, in the exercise of its own discretion or under the direction of a written constitution, delegate the exercise of such power to the board of supervisors, the subordinate local legislature of the several counties of the state.

The constitution of this state, § 18 of art 3, not because the power to make all laws does not belong to the legislature, but doubtless to save the time of the general legislature and to place certain -powers of legislation nearer to the people for whose benefit they are to be exercised, restrains the general legislature from passing any private or local bill for the building of a bridge, and § 23 of the article provides“ The legislature shall by general laws confer upon boards of supervisors of the several counties of the state such further powers of local legislation and administration as the legislature may from time to time deem expedient.”

The legislature has accordingly conferred upon the boards of supervisors the power of laying out highways and the building of bridges and prescribed the conditions upon which the boards of supervisors may exercise such power.

The acts which have been passed by the legislature from time to time prescribe the changes which it has deemed it advisable to make upon this subject.

The act, chap. 451 of the Laws of 1885, passed by the legislature of the state June 9th, amending chap. 482 of the Laws of 1882, and which amended the act of 1875, prescribe the conditions upon which boards of supervisors may exercise the power of building bridges, and the findings of the trial court in this case show that the conditions prescribed by the above cited chapter 451 of the Laws of 1885 existed when the board of supervisors of Broome county assumed to authorize the building of the bridge in question and provided the means therefor by the levying of the taxes upon the towns of Oonklin and Kirkwood.

Wo think by the change of the laws effected by chap. 451 of the Laws of 1885, the board of supervisors of the county having within it two towns separated by a stream may upon the proper application of one of such towns enact a law authorizing and compelling the erection of a bridge over said stream to connect highways in said towns and impose a tax upon said towns to pay the expense thereof though a majority of the taxpayers of one of

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such towns and its officers are opposed to it, however such opposition may be indicated. The People ex rel. Otsego Co. Bk. v. The Board of Supervisors, 51 N. Y., 401 ; The People v. Flagg, 46 id., 401 ; The People v. McDonald, 69 id., 362.

In order to warrant the conclusion of a court that the legislature intended to change a statute where there is but a slight change in the phraseology of the later statute, it is not always necessary to find a reason for a change, but it seems to me that it would not be difficult to suggest a reason for a change of the former statute by the statute under consideration.

If the former statute had not been changed as we think it has been, a bare majority of the taxpayers of a town could bar the way, perhaps the most convenient and necessary for the rest of the inhabitants of that town and of the entire public outside of that town into or through such town at the most accessible point.

Having reached the conclusion that the decision of the court below upon the ground upon which it is placed should be affirmed,

I have not deemed it worth while to discuss thé other points presented by counsel for the respondent in relation to the effect of the ' act of the legislature legalizing the acts and proceedings of the board of supervisors involved in this action passed before the action was commenced; or that this action sought no other relief than to restrain the issuing of bonds by the respondents and that the bonds have been issued and paid before the argument of this appeal or whether this action is maintainable by the town or whether the undisputed facts in this case constitute a cause of action upon the equity side of the court to restrain the issuing of bonds where there is want of a defense at law.

I think the judgment should be affirmed, with costs.

All concur, except Follett, CL J., not sitting, and Haight, J., absent.