112 N.Y. 585 | NY | 1889
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The general statutory system for laying out, opening and improving highways, contemplates that the *588
towns, villages and cities in which they are located shall initiate the proceedings for, and bear the burden of, their establishment, construction and maintenance. This plan is in harmony with the general theory of our legislation, that, so far as practicable, matters of administration specially affecting the public interests of a particular locality should be controlled by the local government, subject to such general regulations as may be necessary for the common good. But the legislature, unless restrained by constitutional limitations, may resume powers delegated to localities, and assume the direct control of matters pertaining to local government. This principle was applied in the case of highways, in People ex rel., etc., v. Flagg (
The board of supervisors of Queens county, by the ordinance and proceedings now under review, directed the improvement of that part of Jackson avenue within the limits of the town of Newtown, in a certain manner specified, at an expense of $30,000, and directed the expense to be assessed upon the three towns of Newtown, Flushing and North Hempstead, in certain proportions, and that the portion of the avenue so directed to be improved should thereafter be maintained and kept in repair by those towns. Jackson avenue was an existing highway, passing through the three towns mentioned, and the town of North Hempstead, of which the relator was a resident and taxpayer, is separated from the town of Newtown by the intervening town of Flushing. The legislature, prior to 1874, might have directed the improvement of Jackson avenue and apportioned the expense between the several towns, as was done by the board of supervisors. Such legislation would have been subject to no constitutional objection. The case of People ex rel. v. Flagg (supra), is, we think, decisive of that question. The power of the legislature was not limited by town lines, nor was its power to distribute a tax for the payment of the expenses of laying out or improving a highway necessarily confined to the precise territory in which the expenditure was made. Towns through which the same highway runs which furnishes access to market may all be interested in its improvement at any point. But, as we have seen, the legislature while now prohibited from enacting a law, laying out, opening or working highways, may, nevertheless, confer the power it before possessed upon boards of supervisors. We have thus far assumed that, since the constitutional amendment of 1874, the legislature could not by special act have authorized the improvement in question. This is denied on the authority of People ex rel. Commissioners v.Banks (
We think this has been done by the second section of chapter 855 of the Laws of 1869, entitled "An act to extend the powers of boards of supervisors, except in the counties of New York and Kings." The first section of the act empowers boards of supervisors, with the consent of town officers, to authorize the supervisors of any town to borrow money on the credit of such town, "to build or repair any road or roads, or bridge or bridges in such town, or which shall be partly in such town and partly in an adjoining town," and to prescribe the form of obligation to be given for the loan, and to impose a tax on the town to pay the sum borrowed. This section seems to have been enacted to obviate the necessity of applying to the legislature when a larger sum is needed by a town for the building or repairing of roads or bridges than is authorized to be raised under the general statutes relating to highways or bridges. The second section authorizes boards of supervisors "to provide for the use of abandoned turnpike, plank, or macadamized roads, within any town, as public highways; and for the improvement of any public highway laid out in pursuance of law; and for the location, erection, repair, or purchase of any bridge, except over navigable streams, and for apportioning the expense of any road or bridge upon such towns as may be just; and for the borrowing of money by any town or towns, or by the county, for the purposes aforesaid." But the exercise of the powers conferred by the second section is freed from the restriction imposed on proceedings taken under the first section, that the consent of town officers must first be had, and in lieu of such restriction it is provided that the powers conferred by the second section can only be exercised with the assent of two-thirds of all the members elected to the board, and where the ordinance relates to one town or ward only, it shall not become operative unless it receives the *591 affirmative vote of the supervisors representing such town or ward.
The public interests may require the improvement of a highway in a single town, or one passing through several towns, but involving an expenditure which the particular town or towns would refuse or be indisposed to incur. All the people of the county are interested in the maintenance and improvement of the great thoroughfares of travel within the county. The same may be true in respect of bridges and the restitution of abandoned highways. It was, we think, the obvious intention of the legislature, in conferring the powers granted by the second section of the act of 1869, to permit the board of supervisors, on its own motion, under the restrictions specified, to provide for these public interests, and to apportion the expenses upon one or more towns "as may be just," and this although the expenditure may be wholly within one town, but on a highway which is common to several towns. The only point we can consider is that of the power of the board of supervisors of Queens county to pass the ordinance in question. It received the affirmative vote of the supervisor of Newtown, although that is not probably a material circumstance in this case. We are of opinion that the board of supervisors had power to pass the ordinance. The amendment to the act of 1869, made by chapter 285 of the Laws of 1872, does not affect the question. It was an amendment of the first section, and in no respect changed or qualified the second section.
We think no error was committed below, and the order appealed from should, therefore, be affirmed.
All concur.
Order affirmed. *592