144 N.Y. 440 | NY | 1895
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *442
Whether this order was void for want of jurisdiction in the court to grant it is the main and principal question argued by the appellants. The charter of the city of Watertown, as amended, (Laws of 1886, chap. 162), provides, among other things, for the opening of new streets and the taking of lands for the same, and vests authority and power for that purpose in the common council. (§§ 7 and 8.) Upon the application of that body commissioners are appointed to take the necessary lands and assess the damages, whose report, after confirmation by the Special Term, is made final and conclusive. If this had been a proceeding under the statute referred to by the common council to open the new streets we should regard the order of the commissioners which has been confirmed as beyond our review upon a direct appeal therefrom. (In re Prospect Park Coney I.R.R.,
The necessary power was conferred upon the common council by language often used for that purpose. To such body was given the authority of commissioners of highways of towns, "with the exceptions and modifications" thereinafter prescribed. One of those modifications was a distinct enlargement of the authority conferred by including within it power to lay out and open streets. The common council were made town commissioners, but with an enlarged authority. The act of 1891, (§ 9), organizing the board of public works, prescribes that the board "shall have all the powers and discharge all the duties of commissioners of highways of towns as given by and with the exceptions andmodifications" contained in the amended charter. The effect is that the enlarged authority of the common council is, by the same description and an identical phraseology, transferred to and conferred upon the board of public works. The intention to make such a substitution as to the general control of city streets is manifest from the single exception stated, by way of precaution, that the broad terms of the transfer should not divest the common council of its authority to dictate the conditions upon which railroads should be permitted to pass through the city streets. It further appears in the clause which gives to the board exclusive control of the construction, improvement, repair and cleaning of streets. Construction is a broad term authorizing the making of new streets; improvement permits new work upon streets already constructed; and repair relates to the restoration of an existing condition. The four terms used cover the whole subject, from the making of the new street to its final and ordinary maintenance. The general scope of the act is entirely consistent with the view that the whole authority over the construction and care of streets given to the common council was intended to be transferred to the *445 board of public works. It follows that the order was valid, and there was jurisdiction to grant it. The provisions of section seven, which make the confirmation final and conclusive, are, therefore, applicable so far as to shut out the further objections which do not involve the question of jurisdiction.
The order should be affirmed, with costs.
All concur, except O'BRIEN and HAIGHT, JJ., not sitting.
Order affirmed.