15 N.Y.S. 624 | N.Y. Sup. Ct. | 1891
We think the demurrer well taken. The answer does not deny that the board of trustees of the village granted plaintiff consent to erect its poles and string its wires, or allege any fact tending to invalidate such grant of consent, except the allegation that the same was obtained “through fraud, and by means of fraudulent and illegal inducements, and wrongfully.” Passing the question whether this is a sufficient allegation of fact, public policy forbids that the acts of municipal bodies in passing ordinances or administrative regulations should be impeached collaterally. Porter v. Purdy, 29 N. Y. 106. The ordinance of the board of trustees is a legislative act. Duryee v. Mayor, etc., 96 N. Y. 477; Mayor, etc., v. Third Ave. R. Co., 1 N. Y. Supp. 397. The authority to pass it exists in pursuance of the delegation by the legislature to the board of trustees of the village of such local legislative powers as may be suitable to their proper organization, for which the legislature is required to provide, (Const. art. 8, § 9,) and is therefore an exercise of the sovereign power of the state. Whatever powers may exist in the judiciary to vacate such action for fraud and corruption in its exercise, it would, as said by Chief Justice Marshall in Fletcher v. Peck, 6 Cranch, 87; “be indecent in the extreme, in a private action between two individuals, to enter into an inquiry respecting the corruption of the sovereign power of the state.” See Baird v. Mayor, etc., 96 N. Y. 567, 581. The validity of the grant of the privilege cannot thus be assailed, and this part of the answer is invalid as a defense. Every other part of the answer demurred to is so dependent upon this part that it falls with it. The defendants contend that, because the license given by thetrustees operates to permit the plaintiff to invade their lands, and thus prejudice their property rights, the defendants should be permitted to allege anything which avoids the license. The contention is based upon a false assumption. The license in question comes from the sovereign power. Sovereign power is limited by constitutional restraints, and the defendants’ protection against the invasion by the sovereign of private rights exists only in such restraints. Private property shall not be taken for public use without compensation. But the property in question has been taken for public use, and presumably compensation was long since made or waived. The legislature may authorize the use of the streets for other purposes than travel, and electric lighting is one of such purposes. Construction Co. v. Heffernan, 12 N. Y. Supp. 336. It thus enlarges the usefulness of the public right. It does not invade any right reserved by the defendant. When the street was first acquired for public use this particular right was acquired, though long unexercised. The license given by the trustees is thus within the public right, and this is merely the first time that it has thus been exercised. Of course, if the exercise of this right, owing to peculiar and special circumstances, should injuriously affect the lot of the defendants, and thus injure property which the public have no right to invade, or should be solely for private purposes, defendants might have a right to protection or compensa
