16 Barb. 392 | N.Y. Sup. Ct. | 1853
The first question is, can a person owning real estate in the city of New-York and paying taxes on it, prosecute an action against the corporation, on behalf of himself and other tax-paying citizens, to enjoin them from expending the money to be raised by taxation, in repairing or paving a street in a manner contrary to an express law, and to add to the taxes of the citizens ?
In Adriance v. The Mayor, &c. of New- York, (1 Barb. S. C. R. 19,) a suit by a tax-payer was instituted, in a case where the corporation was about to appropriate the moneys of the city contrary to law. In Kirby and others v. The Mayor, épc. of New- York, and Berrien, a suit was also sustained by tax-payers, the corporation being about to purchase ground for purposes of burial, out of the city. In Christopher v. The Mayor, &c. of New-York, (13 Barb. 567,) the question was raised and ably argued at general term, and decided in favor of the right of the tax-payer to sue, (see p. 571.) The judge who gave a dissenting opinion in that case, said nothing on this question ; but he regards the decision of the court as authority until reversed. In Milhau v. Sharp—the Broadway railroad case—(15 Barb. 193,) and in Stuyvesant v. Pearsall—the second avenue railroad case—(Id. 244) the same question was again presented at the general term, and with the same result.
The counsel for the defendants in this case argued this question in Christopher's case, and then with as much ability and
It is supposed that the court, in' the above cases, overlooked the provisions in the revised statutes as to “ proceedings against corporations in equity.” (2 R. S. 462.) Before that statute was passed, Chancellor Kent had decided that an injunction did not lie, at the suit of the attorney general, to prevent an insurance company from doing banking business; that this attempt to exceed its chartered powers was a public offense over which chancery had no jurisdiction, and was to be met by the remedy provided in the courts of law by quo warranto or an information. (Attorney General v. Utica Insurance Co. 2 John. Ch. 380.) But the chancellor there made a broad distinction between that case and the case of a private injury. He said “ if the directors of the Utica Insurance Company were to appropriate the funds or capital of the company to their own private emolument, or if, disregarding the business of insurance, they were to divert the funds to the destruction of that object, by making roads, and canals, or building theaters or churches, I have no doubt'this court would have a right, and would be bound, to interfere and check the abuse. But when the question is, whether a corporation has forfeited its charter, or has usurped a franchise,,-or has broken a penal law, the case is widely different. This court is not the proper tribunal to sustain the prosecution, .or-: to inflict the punishment.” “ There is no complaint on the part of the stockholders of misconduct, nor is the information founded on any thing of that kind.” Did not the chancellor mean by this ‘ that if there were any violation of the charter injurious to the corporation, they were the proper parties to complain, and might proceed by injunction ; but that if the act complained of was one affecting injuriously only the people in their sovereignty—as by usurpation of a franchise not granted ■ by the people—then the attorney general was of course the
The second question was, whether the corporation! a contract without advertising for proposals, and giving it to the lowest bidder. This was decided in the negative, in the case of Christopher ; and the judge who dissented from his brethren
These two points being against the defendants, the injunction should be sustained, and the order appealed from reversed without costs.
The plaintiffs in this case,'as owners of real estate and tax payers in the city of New York, on behalf of themselves and all others similarly situated, claim relief by injunction against the corporation of the city, on the ground of an alleged attempt wrongfully to appropriate the public moneys and property, and thereby to incumber the plaintiffs’ real estate with undue taxation, by entering into an alleged unlawful contract with Messrs. Russ and Reid for paving the Bowery and other streets, at an expense of nearly three-quarters of a million of dollars.
In December, 1852, it appears, Messrs. Russ and Reid presented their memorial to the common council, stating that the materials for the completion of Broadway, would all be prepared in a short time, and that the Bowery, Chatham-street and Park Row, as the next important thoroughfare, were next entitled to the Russ pavement. A few days afterwards the board of assistants passed a resolution directing a contract to be made accordingly, at an expense of six dollars and fifty cents per square yard, besides the old materials valued at some sixty or seventy thousand dollars more. Immediately upon the publication of this proceeding, Messrs. Gumming &. Pollock, perfectly responsible men, offered to do the work in the same manner at $5,50 the square yard. On the 22d of April, John B. Morrell & Go. offered to do the work at $3,50 a yard, and to bind themselves with ample sureties that the “ pavement (when done) should not be inferior in durability and appearance to any laid in the city.” The board of aldermen, notwithstanding, five days afterwards, with both these proposals before them, concurred in the resolution of the assistants, and sent it to the mayor for his signature.
The mayor, on the sixth of May, vetoed the measure, as inexpedient and as in direct violation of law. A majority of the
It will be observed, by recurring to the dates above detailed, that the measure in question, after being introduced into one of the boards, seemingly slumbered in the other from December to April. On the 12th of April, for reasons wrell understood as matter of public history, the legislature passed the amended charter, containing among other provisions one for strengthening the veto power of the mayor, and another requiring all contracts, like the one proposed, and all sales of public property and franchises, to be first duly advertised and then given “ to the lowest bidder with adequate security.” This act before becoming a law, was to be submitted to the people at an election on the first Tuesday of June. In the interval, on the 20 th of May, the board of assistants again passed their original resolution, and the board of aldermen were to do the same on the day following, little more than one week before the sense of the people was to be taken on the amended charter.
Were not these proceedings on their face, to say nothing of the breach of trust, a clear and palpable fraud contemplated on the action of the legislature 1 “ It is conceded.” says the judge,
Much alarm has been expressed by counsel, but not felt it would seem by the community, at the interference, so called, of the judicial with the executive and legislative departments of the government. The maxim, implied in this argumerit, I had always supposed had reference to the government of the state or nation. In that view the maxim is a sound one, and deserving the most implicit obedience. But is the common council of this city, with its power to light and pave streets and build and regulate markets, and pass by-laws and ordinances with ten dollar penalties, in any just sense of the terms, or within the reason and spirit of the maxim, the legislative department of the government ? By the third article of the constitution, which it is presumed is the best authority on this subject, it is declared that “ the legislative power of this state shall be vested in a senate and assembly.” And although the senate and assembly, if they see fit, may, from time to time, according to the same article, confer upon the boards of supervisors “ powers of local legislation and administration,” yet no one will contend that such a delegation of authority, in subordination to the senate and assembly, even if the clause embraced the common council, would pl^ce that body beyond the reach of the regular administration of justice; or exempt its action from the control of another ar?
Every corporation, whether for banking, insurance, manufacturing, municipal or railroad purposes, has the power of making by-laws, and is vested therefore, in some sense, with legislative authority. Indeed every individual, with a family, if it be at all well governed, may be said, in the same sense, to legislate, and to be vested by law with powers of local legislation and administration. But is the exercise, of these powers, in such cases, merely because for convenience of expression we call them legislative, to be exempt from the jurisdiction of the courts, both at law and in equity ? In the case of the state legislature, representing in all its fullness under the constitution, the sovereignty of the whole people, there is an obvious fitness, and an equally obvious necessity, for the exemption. Does either that fitness or that necessity apply to subordinate corporations, whether their by-laws act upon streets or upon railroads? In the exercise of a merely discretionary power no one claims' a right to control them, or rather to overrule their judgment. But in a case of fraud, or illegality, or gross breach of trust, no reason exists why the courts should not afford a remedy, as well against corporations, be they great or small, as against individuals. Corporations are but trustees. They are endowed with trust powers and sometimes also with trust property—both the appropriate subjects of equity jurisdiction—to prevent the misapplication of the one and the misuse of the other. And what, in this respect, is the difference between a board of aldermen and a board of any other directors ? When the latter, in pursuit of their own, invade the interests of their stockholders, none deny the power and the duty of the court to interfere. And shall it be said that the former, even if, in the exercise of the delegated taxing power, they should in effect attempt to appropriate every house and lot in the city to their own individual use, cannot be re
One of my colleagues, who admits, the correctness of the decision in the Washington market case, when speaking of the action of the same judge in the present case, says “ the justice at chambers had no jurisdiction, upon the complaint of a citizen, to interfere by injunction with the municipal legislation of the city.” Now what, I would respectfully ask, is the difference, in principle, between the market contract and the pavement contract.? The corporation, in each case, were the owners of the soil, in trust, in the one case for the public use as a thoroughfare, in the other for t]ie public use as a market, or for the public use generally. In the one case, the measure complained of was the contemplated tearing down of the existing market, and incurring a heavy debt to put up a new one; in the other the contemplated tearing np of the existing pavement, and incurring a heavy debt to put down a new one. In both, the old materials, of considerable value—some thousands of dollars—were to be given to the fortunate contractors; and in both, some hundreds of thousands of dollars, raised or to be raised by taxation, were also to be appropriated to the same object. In both, the corporation officers and contractors and the corporation as such—not the members of the common council— were made parties defendant; and in both the plaintiffs seeking relief were individual tax-payers, and the relief prayed for and granted was the restraining the defendants from making the threatened contract, which was to result in the creation of an unjust incumbrance upon the plaintiffs’ property. Can it then be said, with correctness, that there is any difference, “ palpable” or otherwise, “ in the facts and the legal principles applicable to these two cases ?” (13 Barb. 567.)
It was said in the market case, as in the pavement case, that the filing of a bill by a tax-payer, although on behalf of himself
An objection, stated in the opinion of the court below, that if this suit by two, out of a great number of tax-payers, can be sustained, then every other tax-payer may bring a like suit, and thus engender “ an overwhelming mass of litigation,” is founded, I conceive, in misapprehension. The present suit is not brought by the two plaintiffs merely on their own behalf, but “ on behalf of all the tax-payers in the city.” Ho other independent suit, therefore, would be necessary or be permitted; and should another .be instituted, ail proceedings in it, according to the established rule, would be stayed.
Again; it is said the attorney general, as representing the public at large, should be a party. As a mere matter of con venient practice, having no reference however to the abstract right of the case, it might perhaps be well, under circumstances to be judged of by the court, to require in some cases the insertion of his name. Where a compromise, to the prejudice of the citizens generally, was apprehended, the judge in granting the preliminary injunction, at the instance of one or more private tax-payers, might insert a provision in the order directing it to be inoperative, unless within a reasonable time that officer should join in the complaint—thus preventing a discontinuance of the proceeding without his consent. In that view, and in that view only, do I consider the making of the attorney general a party as at all requisite. The provision of the revised statutes, supposed by the judge, who dissolved the injunction, to have been
When the people think so—and the people, it should be remembered, are the constitutional tribunal to pass upon this issue— they can readily and no doubt will promptly and effectually make their sentiments known and felt through their representatives in the senate and assembly, the proper legislative department
For the reasons stated, and others which, were it not for the brevity necessarily imposed upon me, might be urged, more especially after the same question of jurisdiction had been elaborately argued and decided, not only several times at special term, but also at two general terms of the supreme court, and one general term, before a, full bench of six judges, of the superior court—for these reasons I say I am of opinion that the injunction, in this case, was not “ improperly granted,” but that the order, dissolving it, was itself improperly made and ought therefore to be reversed.
Edwards, J, concurred.
Edmonds, J. dissented.
The facts stated in the complaint and not refuted by the defendants, are the following: The plaintiffs are inhabitants of the city of New-York, and own therein a large amount of real and personal estate which is subject to be assessed for taxes to meet and pay the municipal expenses of the city, and the expenses of paving the streets mentioned in the resolution set forth in the proceedings. On the 27th day of December, 1852, the board of assistant aldermen, of the “ Mayor, Aldermen and Commonalty of the City of New-York” adopted and passed a resolution authorizing the commissioner of repairs and supplies to enter into a contract with Russ &■ Reid, two of the defendants, to pave Park-row, Chatham-street, the Bowery and a part of the Fourth-avenue, with the Russ pavement; containing a specification of the work to be done, and the price to be paid per yard; appropriating fifty thousand dollars, to be paid the first year; and stipulating that Russ & Reid were to have the old paving stones, &c. On the 27th of April, 1853, the resolution was adopted by the board of aldermen, and sent to the mayor for his action. On the 6th of May, 1853, the mayor returned
On the 20th of May, 1853, the board of assistant aldermen reconsidered and adopted the resolution, notwithstanding the mayor’s objections, and sent it to the board of aldermen for their action. On the 21st of May, 1853, while the resolution was pending in the board of aldermen, for their legislative action, the plaintiffs, as inhabitants and owners of property, and tax payers of the city of New-York, for their own benefit as well as in behalf of all the owners of property and tax payers in said city, instituted this suit, and in accordance with the prayer of their complaint, obtained from a justice of this court an injunction order, restraining “ the mayor, aldermen and commonalty of the city of New-York” from “ attempting to permit, direct or suffer the defendant Bartholomew Purdy [commissioner of repairs and supplies] entering into, making or executing a contract with the defendants Buss & Beid, &c. as specified in the resolution then pending before the board of aldermen, and commanding the said ‘the mayor, aldermen and commonalty of the city of New-York’ and the said ‘ Bartholomew Purdy’ [commissioner of repairs and supplies] to abstain and refrain from entering into, signing, executing or receiving, or attempting to enter into, sign, execute or receive the contract mentioned in the said complaint and in the said resolution therein contained,” or any like or similar contract, “ and from carrying or attempting to carry into effect the said resolution” then so pending before the board of aldermen for their legislative consideration and action.
The only means by which “ the mayor, aldermen and commonalty” can “ attempt to permit or authorize” one of their subordinates to perform an act, Or can themselves “ attempt to authorize a contract” to be made, is by members of the common council at a meeting of one of the boards, in their legislative capacity, advocating or voting for a resolution or ordinance directing or authorizing the performance of the act. Therefore the injunction order granted by the justice at chambers, which was dissolved by the ■ special term, and the injunction which this appeal seeks to restore, would (if authorized by law) restrain
The allegations of fraud, contained in the plaintiffs’ complaint, are so fully met and refuted by the defendants, that the counsel for the plaintiffs did not upon the argument attempt to use them as fortifying his positions. All allegations of fraud thus being out of the case, the determination of this appeal depends upon legal questions only.
The power of the “mayor, aldermen and commonalty” over the streets of the city, is among the political powers granted to the corporation as a municipal government, to be exercised by the common council, the legislative branch of the corporation. (City Charter and Kent’s Notes, 7, 58,143,145.) This is the only right and power which “ the mayor, aldermen and commonalty” have in and over the streets; as such, it has been exercised by them from the organization of the government, and recognized and proclaimed by an unbroken chain of judicial opinions and decisions. It is a governmental power and duty; not a franchise yielding emolument and revenue, as ferries, markets, places of interment, and the Croton aqueduct, &c. Chancellor Kent, in his notes upon the city charter, page 142, note 31, says: “ The sixteenth section gives to the Common council power to establish, direct, lay out and alter, repair and amend streets,” &c. “ This is a grant of a public nature, without any private interest, or property or revenue connected with it, and it has always continued with the common council under free and active exercise, subject nevertheless at all times, to legislative interference and direction.” Also in note 29, commencing at page 132, in speaking of the immense political power possessed by the corporation in relation to streets, &c. and the ordinance power, he says: “The efficient checks against any abuse of such enlarged discretion, are public opinion, the elective franchise, and the established principles of the constitution and of recognized common law. In addition to these checks, all corporations are liable to legal process -in behalf of the state, for nonuser or misuser of their rights and powers.” In this case
Justice Strong, in his opinion states: “ The adoption of ordinances or resolutions for the improvement of the streets is nowhere declared to. be an executive duty, but is the exercise of a power devolved upon the common council in its legislative capacity. The resolution making the grant in question, with reference to the improvement of Broadway as a street, was pending before the common council when the injunction was issued, and that process, if effectual, would necessarily have interrupted and eventually prevented legislative action. I can find no warrant for this interference, either in any legislative enactment or judicial determination. It is a familiar principle that legislative action is not subject to judicial control.” “ Judges are elected or appointed to administer the laws, not to make them, orto interfere in their enactment.” “Upon the whole, lam satisfied that the learned judge, by whom the injunction in questiofi was allowed, went beyond the jurisdiction of his court; because, first, such injunction was restrictive of legislative action
The subject matter of this suit is, the paving of streets. The paving of streets, by all, is conceded to be on the part of the corporation, the performance of a municipal political duty, done by them in their character of a municipal political body. In relation to which Justice Edwards says, “as far as it acts in the exercise of its political powers and within the limits of its charter, it is vested with the largest discretion, and whether its laws are wise or unwise, whether they are passed from good or bad motives, it is not the province of this court inquire.” And Justice Strong says, “The adoption of ordinances or resolutions for the improvement of streets,” &c. “ is the exercise of a power devolved upon the common council in their legislative capacity.” “ The resolution making the grant in question, with reference to the improvement of Broadway as a street, was pending before the common council when the injunction was issued, and that process, if effectual, would necessarily have interrupted and entirely prevented legislative action. I can find no warrant for this interference either in any legislative enactment or judicial determination. It is a familiar principle that legislative action is not subject to judicial control.” “Judges are elected or appointed to administer the laws, not to make them or to interfere in their enactment.” “Upon the whole, I am satisfied that the learned judge, by whom the injunction in question was allowed, went beyond the jurisdiction of his court; because, first. Such injunction -was restrictive of legislative action.” “ And third, it transcended the limits established by the practice of the court of chancery.”
These legal principles are applicable to and control this case. The justice at chambers had no jurisdiction upon the complaint of a citizen, by injunction, to interfere with the municipal political legislation of the city. The counsel for the plaintiffs upon the argument claimed that the decision of this court, in
The present case is in relation to one of the ordinary, recognized, and admitted municipal political duties, the cost of which is to be defrayed by taxation, and in all respects is similar in principle to sweeping the streets, lighting the city with gas or oil, supporting the poor, burying the dead, protecting the city against the ravages of an epidemic, the destruction of buildings to stop a conflagration, the expenses of the fire department, of the police and of the military when called out to sup
Edmonds, Edwards, Mitchell, Roosevelt and Morris, Justices.]
In my judgment, if the principle contended for in this cause be law, then can a tax-payer of the city by injunction suspend the action of the city government in attempting to feed the poor, bury the dead, light the streets, extinguish fires, and suppress riots, &c. for the jurisdictional reason that the plaintiff owns property which by taxation might be obliged to contribute something towards the expense. It will be said no judge would grant such injunction. That may be, but still it is impossible to anticipate how far precedent might extend the present injunction epidemic. I, however, am unwilling by any opinion of mine, even by implication, to be considered as asserting that our institutions are so constituted that the law deems the possesssion of property to be supreme to the government, and that a man, because he possesses wealth, has the legal right to stop the government from attemping to protect the community, and from performing duties alike demanded by the ordinary dictates of humanity, and by official oaths. The point presented, that a private citizen cannot institute proceedings against a municipal corporation to restrain excessive jurisdiction, but that such suit must be instituted by the attorney general, is well taken. This point is so clearly presented, and so conclusively disposed of, by the justice who decided this cause at special term, (Justice Edmonds,) that it is only necessary for me to refer to his opinion and say I fully concur in it.
The order appealed from should be affirmed, with costs.
Order appealed from reversed.