Hubbard v. Sadler — 5 N.Y. St. Rep. 592

Majority

p. 592

Harmanus B. Hubbard, Ex’r., Appl’t., v. H. M. Sadler et al., Resp’ts.^[1]

(Court of Appeals,

Filed January 18, 1887.)

Headnote

1. MUNICIPAL CORPORATION — STREET IMPROVEMENTS — SUPERVISORS, POWER TO ISSUE BONDS — Laws 1875, CHAP. 482 — Laws 1881, CHAP. 554.

Laws 1875, chapter 482 as amended by chapter 554 of Laws 1881, gives authority to the supervisors of Kings county, as a local legislature to lay out and construct streets and avenues in the town of New Utrecht and to provide by limited or general assessment for the payment of damages awarded for property. It also authorizes the issue of short-term municipal bonds upon which to borrow money for the payment of the awards.

2. Same — Eminent domain — Provision eor compensation.

The resolution of the supervisors acting under said statute authorized the issuing of short-term bonds upon which to borrow money for the payment of the awards in connection w'ith the construction of a certain street. The proceeds of the loan were to be at once devoted to such payment, and the town to be reimbursed by the local assessments, and in case of their deficiency by general taxation. Held, a valid method of providing for the payment for land taken for local improvements.

Appeal from a judgment of the supreme court, general term, second department, áf&rming a judgment of the Kings county special term, dismissing the complaint in an action for an injunction against an alleged threatened trespass.

The defendants Sadler, Ferguson and Moore, were appointed grading commissioners, by a resolution of the Board of Supervisors of Kings county, for the opening and grading of 18th Avenue, in the town of New Utrecht, in the county of Kings. Under said resolution they and one Curren, a contractor, claimed the right to build said avenue and to enter upon and take the land of plaintiff’s testator. Plaintiff’s testator brought this action to restrain them claiming among other things that there was no adequate provision made in the resolution for compensating for land taken. During the pendency of the suit he died and the action was revived and continued in plaintiff’s name.

John D. Pray, for appl’t; William Sullivan, for resp’t.

The constitutional question raised in this case was decided against the views of appellant in Re Church, 92 N. Y. 1 , It is now suggested that a difficulty exists not then considered, in the alleged fact that the act of 1875, (chapter 482,) with its amendments, does not authorize the supervisors to issue bonds in order to obtain money with which to pay awards to landowners, and, inferentially at least, forbids such issue. We did not in the case cited discuss that question, but practically decided it when we held that the public purse stood behind the awards, and guaranteed their payment. The statute as amended

p. 593

(Laws 1881) gives authority to the supervisors, as a local legislature, to lay out and construct certain streets and avenues, and to provide by limited or general assessment for the payment of damages awarded for property taken. Under this authority the supervisors acted. They provided, first, for an assessment district of property benefited, upon which, as an area of taxation, the cost of the improvement was imposed ; but, recognizing its possible insufficiency further provided that any deficiency of principal or interest upon the debt incurred by the awards should be paid by general taxation. It is the mode of reaching rather than the substance of this result that is the subject of criticism. The resolution authorizes the issue of short-term bonds, none running longer than six years, and some only two, upon which to borrow money for the payment of the awards. The proceeds of the loan were to be at once devoted to such payment, and the town tobe reimbursed by the local assessments, and in case of their deficiency, by general taxation. To effect this result, the resolution provides “that any deficiency required to meet the principal and interest on said bonds shall be made a tax on the real and personal estate of the town.”

It is now argued that a deficiency upon the bonds is all that is provided for, and payment is due to the land-owner from their proceeds alone, and, if there can be no bonds, there can be no payment. But the local legislature authorized explicitly their issue, and if in doing so it acted within the scope of the statute committing to it upon some such subjects, and within some limits, the powers and duties of a legislature, that is an end of the question. Of course, it is not doubted that the state may confer upon a municipal corporation the power to borrow money if otherwise it did not exist. What it could itself do in laying out, opening, and grading streets and avenues like the one in question it could authorize the local legislature to do, with all its own discretion. It did confer such authority in broad and general terms by the act of 1875 and its amendments. It transferred to the supervisors its own power and authority, as to a particular class of streets and avenues, to fix a plan for their grades; to lay out, open, grade, construct, close, and alter any of them ; to “ provide” for the estimate and award of damages; for an assessment on property benefited; for the levying, collection, and payment of damages, and all other charges and expenses necessary to be incurred.

Control over the whole subject, legislative discretion as to all incidents and details, and the mode of accomplishing the purpose, was thus, in the broadest and most general way, conferred upon the supervisors. Providing for assessments for benefit, and general taxation of the town for any possible deficiency, they could, as they did, and as was right and reasonable, in the interest of the land-owner, anticipate the slow collections of such

p. 594

proceeds by borrowing the money needed for payment beyond the collection of the first 30 days, to pay the awards, giving in exchange the obligations of the town, running only for the comparatively brief period of reimbursement.

Reference is, however, made to subdivision 29 of the act of 1875, which gives authority for the issue of long-term bonds not exceeding 20 years, for the purpose of building and repairing bridges, purchasing turnpike roads or toll-bridges, buying land for a town-hall, and constructing the same, and enlarging cemeteries ; and it is argued that this grant of authority excludes an intention to bestow it in other cases. These are special, and to some extent unusual and extraordinary, expenditures, as to which there might possibly have arisen doubt whether the creation of a long-term bonded debt was a necessary incident-of a general grant of power. It may not have been needed, but, if it was, it seems to have been rather for the purpose of limiting and defining the power of borrowing money which might have flowed from the general grant of authority than of supplying its absence, and cannot, by inference, forbid the borrowing of money for short periods in anticipation of a tax ordered to be laid for reimbursement. Ketchum v. City of Buffalo, 14 N. Y., 376 . Practically, the town is authorized to incur the debt to the landowners. It is made responsible for its payment, and authorized to provide the necessary means, and, through the provision for a general tax upon failure of the special assessments, becomes as to the land-owner the real debtor. We think the grant of legislative power was not exceeded by the act of the supervisors in providing, through a temporary loan, for the prompt and immediate payment of the awards pending the ultimate reimbursement by taxation.

No other question is raised in the case and the judgment should be affirmed with costs.

All concur.

Cases cited

In re Church 92 N. Y. 1 N.Y. 1883-03-20 p. 592