Mander v. Coleman

95 N.Y.S. 696 | N.Y. App. Div. | 1905

Chase,. J.:

The evident -purpose and intention of the charter of the city of Elmira is to restrict expenditures by the comm'on council for the ordinary expenses of the city to $175,000 for the current year. Such.restriction upon the expenditures is exclusive of interest and principal falling due. within' the current year on-bonds issued by the city, and of all other liabilities of the city for which other provision is not made (Charter [Laws of 1894, chap. 615], § 31, subd. i, as amd. by Laws of 1904, chap. 367), of an amount not exceeding $25,000 for pavements' and sidewalks.(Id. § 148, as amd. by Laws of 1896, chap. 693), of an amount necessary for the maintenance of the public schools, and of an amount for library purposes (Id. § 223). (See, also, Laws of 1859, chap. 113, as amd.) The common council is limited in its expenditures to the several amounts fixed and determined by it to be raised for the current year and to- expendí, tures for the purposes in its estimate specified, except as prescribed in section 71 of the charter, as amended by chapter 367 of the Laws of 1904 (See charter, § 51, as amd. by -Laws of 1904, chap. 367), and also except that certain transfers of funds are authorized from the general fund of the city for specified purposes not affecting the questions now considered. (Charter, §§ 173, 181, as amd. by Laws of 1904, chap. 367.) The expenditure of money for any extraordinary or special purpose, which in the opinion of the common council cannot be paid from thé sums authorized by the charter to be raised, after appropriating the same and defraying the ordinary expenses, or the raising of a sum over and above said $175,000 for the ordinary current and contingent expenses of any year, is wholly dependent upon a favorable vote of the qualified vdters of the city. (Charter, § 71, as amd. by Laws of 1904, chap. 367.) The item of $10,000 to apply on the contract for a garbage crematory clearly cannot be considered as a part of the fund specified in subdivisions b to h, inclusive, of section 31 of the charter (as amd. supra). It is not an expense to be paid from the contingent or general fund. If it is conceded that the contract or contracts towards which it is proposed to pay the $10,000 constitute expenses of the city, they are fixed and determined expenses, and not such expenses as come within the term “contingent.” Contingent expenses are such as are possible or liable, but not certain to occur. (Webster Internat. Diet.) If the $10,000 is treated as a part of the contingent expenses provided for by subdivision a of said section 31, it would make the amount to be raised under said subdivisions' a to h, inclusive, of said section 31 exceed the limit of $175,000 which is prohibited by that section. The respondents are, therefore, forced to insist, if at all, that the consideration named in said deeds and the amount of the contract for the erection of said crematory are liabilities of said city within the meaning of subdivision i of said section 31.

If the common council can make the amount to be paid under any agreement that it may authorize a liability against the city, so that it can be placed in the amount to be raised by tax under said subdivision i .of said section 31, it necessarily follows that the provisions of the charter requiring that all questions as to extraordinary and special expenditures be submitted to the qualified voters of the city, and also the limitation on the amount to be raised for current expenses, áre wholly useless as protective measures. The purpose of tlie limitation on the power of the common council would by such construction be subverted aud overcome by a part of the very section in which the limitation is stated. Such a con•struction would leave the. common council entirely unrestricted in their authority to expend money for any city purpose. The liabilities of the city mentioned in- said subdivision i of said section 31 are fixed and adjudged liabilities and not claims for current and extraordinary expenditures created, if at all, only by contract of the common council or of some city officer. It is Only liabilities by statute, by judgment, or of the - class and solemnity of bonded indebtedness, that can be intended by said subdivision of said section, In carrying out the plain purpose and' intention of the charter we must hold that there is no power in the common council to expend money or enter into contracts so as to bind the municipality for any extraordinary or special purposes which cannot be paid out of the sums-authorized to be raised for current or special expenses as stated' until there is a favorable vote upon the proposition to make such extraordinary and special expenditures by the qualified voters of the city in the .manner provided by the charter. The building of a garbage crematory was an extraordinary and special purpose which requires a vote of the qualified voters of the city of Elmira, and a favorable vote in the. manner prescribed by the charter for such expenditure is the first and preliminary step in relation thereto, and any contract relating to the erection of such garbage crematory without the money to pay therefor in advance of such favorable vote by the qualified voters " was premature and unauthorized and cannot be enforced unless ratified after a vote in favor of such expenditure has been taken. If we are correct in the views expressed, it is unnecessary and unwise to discuss , the other questions presented on this appeal as they may not arise in the same way again.

The order should be reversed, with ten dollars costs .and disburse* ments, and, the parties to the action assenting thereto, without, prejudice to the right of the city tv review this decision or hereafter to contend that said contracts are in all respects legal; the preliminary injunction, as modified, is further modified so as to enjoin only the making of payments under said contracts or either of them and the doing of any act in-further performance thereof.

- All concurred ; Houghton, J., not voting, not being a member of this court at the time this decision was handed down.

Order reversed, with ten dollars costs and disbursements, and, the parties to the action assenting thereto, without prejudice to the right of the city to review this decision or hereafter to contend that said contracts are in all respects legal; the preliminary injunction, as modified, is further modified so as to enjoin only the making of payments under said contracts or either of them and the doing of any act in further performance thereof»'