101 N.Y.S. 239 | N.Y. App. Div. | 1906
It is not apparent, just how the amount of this bond issue was arrived at nor is it material. The purpose thereof is to relieve individual property owners of a portion of the assessments which have been levied against their property for this public improvement, and which assessments, under the provisions of the city charter, are liens against their property, and are concededly enforcible against the same, and the legality of which is unquestioned.
The ¡lower of the city to issue these bonds must be derived from some legislative enactment. (Wells v. Town of Salina, 119 N. Y. 280.) Such power is claimed to exist in" subdivision 25 of section 59 of the city charter, as amended, which, so far as pertinent to this question, provides that “Whenever the common council shall resolve, by the affirmative vote of a majority of all its members, that an extraordinary expenditure ought for the benefit of the city to be made for any specific purpose set forth in the resolution, it shall make an estimate of the sum necessary therefor,” and ■ then it provides for the submission "of the question to a vote of the; taxpayers and for raising such sum by taxation or bonds, prescribing the procedure which has been followed in this case and which has resulted "in the bonds in question.
Underlying all expenditures authorized by this statute there is the basic principle that such expenditure must be “for the benefit of the city.” I am at a loss to discover by what reasoning .process it can be claimed that this proposed expenditure is to benefit the city. It is prejudicial to the city without an equivalent therefor. It benefits not the city but individual taxpayers at the expense of the city. If it be urged that these special assessments are unjust to the property owners affected thereby, in that the latter are subjected to an unfair proportion of the cost of this city improvement, it may be said in answer that no system of taxation has yet been devised resulting in an absolutely fair distribution of the public burden. Equality of taxation is one of the unsolved problems which has engaged the attention of political economists since Adam Smith published his Canons of Taxation. It is one of the bright iridescent dreams of the future scarcely to be hoped for, much less expected, as long as mental activities 'are circumscribed by human limitations. No equitable reason appears why these property own
It clearly is hot the purpose of this net to relieve persons from lawfully imposed. taxation. The act contemplates expenditures, which in some way will prove-beneficial to the city and which will not merely prove beneficial to some of the taxpayers of the city at the expense of the latter. This proposed expenditure does not subserve any municipal ■ purpose. The expenditure for the sewer was, in the language of the statute, “ an extraordinary expenditure,”' and “for the benefit of .the city.” But that has been provided for and:is an accomplished fact. This proposed expenditure is not for the purpose of constructing the sewei1,.but for-the purposeof relieving certain taxpayers from their legal burden of contributing to the -expense of such sewer. The citation of authorities in reference' to statutes conferring power on municipalities to .raise money is uuinstructive. 8ucli were the cases of Terrel v. Wheeler (49 Hun, 262 ; 2 N. Y. Supp. 86 ; affd:,123 N. Y. 76; 33 N. Y. St. Repr. 404); Lamb v. Connolly (122 N. Y. 531) ; Cayuga County v. State of New York (153 id. 279), cited by plaintiff. Here no stich power is granted by the statute in question for the proposed ' expenditure. The common council was not authorized thereby to submit, to the taxpayers of the city any such proposition as was'voted on, and nil proceedings^ reference to such proposition were void and the bonds are illegal. . •
.' All concurred.
Judgment ordered for defendant, with costs.