82 N.Y.S. 610 | N.Y. App. Div. | 1903
The plaintiff brings itself within the provisions of section 1925 of the Code of Civil Procedure and of chapter 531 of the Laws of 1881, as amended by chapter 301 of the Laws of 1892, entitled “An act for the protection of taxpayers,” and while it urges a special interest aside from its status as a taxpayer, we do not find it necessary to consider the equitable merits of its case at this time. Chapter 531 of the Laws of 1881, as amended by chapter 301 of the Laws of 1892, is a remedial statute, and is to be liberally construed for the purpose of “ the protection of taxpayers.” (Fischer-Hansen v. Brooklyn Heights R. R. Co., 173 N. Y. 492, 499; Latham v. Richards, 15 Hun, 129, 133, and authorities there cited; Adamson v. Union R. R. Co., 74 id. 3, 9; Matter of Town of Eastchester, 53 id. 181, 184; Armstrong v. Grant, 56 id. 226, 228; Ayers v. Lawrence, 59 N. Y. 192, 196, and authorities there cited; Osterhoudt v. Rigney, 98 id. 222, 231; Gorden v. Strong, 158 id. 407.) These acts for the protection of taxpayers give a new right of action. It was the settled law of this State, prior to the adoption of chapter 161 of the Laws of 1872 (the predecessor of the present statutes), that a taxpayer in his character as such, whose position was not different from that of the Avhole body of taxpayers, had no such interest as entitled him to resort to a court of equity, to revise, restrain or set aside the action of town or municipal authorities, upon an allegation that their acts were unauthorized and illegal, or that unless arrested they would subject the plaintiff to unjust or illegal taxation. (Osterhoudt v. Rigney, supra, 229, and authorities there cited.) The relegation of the taxpayer, under this doctrine, exclusively to legal remedies for relief, amounted in many cases to its practical denial, and it was the purpose of the Legislature to place the taxpayer in a position where he could, before the intervention of vested rights and the equities of third parties, challenge the legality of the acts of public officials upon the same grounds which he might interpose in a legal action to protect his property against alienation under an illegal assessment or other act of the public authorities by which he Avas to be divested of his property. (Ayers v. Lawrence, supra; Osterhoudt v. Rigney, supra.) Taking this view of the law, Finch, J., in the case of Warrin v. Baldwin (105 N. Y. 534, 537), says: “ The act of 1881
Having in mind that the law is designed for the protection of taxpayers, it should be remembered that the only warrant for the imposition of a tax or a burden upon the citizen or his property without his consent must be found in some positive law, and that it cannot be enforced unless imposed in the manner pointed out by the statute (Sanders v. Downs, 141 N. Y. 422, 424; Schneider v.
In the case at har the defendant, the commissioner of water supply, gas and electricity, is seeking to purchase certain property for the city of New York, which will impose a burden of taxation upon this plaintiff; he is taking steps which are preliminary to the levying of a tax upon the property of the plaintiff, in common with other taxpayers of the city of New York, and which will, if not prevented, compel the plaintiff to part with its money or property, and the question here presented is whether the defendants have taken the necessary steps provided by law to thus impose this burden.
The authority of a municipal corporation to take private property must be expressly conferred, and the power and manner of its exercise strictly pursued. (Schneider v. City of Rochester, supra.) It is not material whether the property, of the individual is taken in the form of taxes or real estate, for in either case they must be taken for public purposes, and can be based only upon the theory that the person contributing taxes or other property is receiving a just condensation for the same. “ The power to levy assessments exists only where it is distinctly conferred by legislative authority,” say the court in Stebbins v. Kay (123 N. Y. 31, 35). “ Where the mode is prescribed in which the power is to be exercised it must be followed. The mode in such cases constitutes an essential element in the proceeding. Especially, where one claims to hold another’s property under a sale for taxes, must one show that every provision designed for the security of the taxpayer has been substantially complied with. Every such provision is mandatory. It is not for the
In Sharp v. Speir (4 Hill, 76, 86), a leading case upon the question here under consideration, the court say: “ Every statute authority, in derogation of the common law, to divest the title of one and transfer it to another, must be strictly pursued, or the title will not pass. This is a mere naked power in the corporation, and its due execution is not to be made out by intendment; it must be proved. It is not a case for presuming that public officers have done their duty, but what they have in fact done must be shown.” So in the case of Deputron v. Young (134 U. S. 241, 256) it is said that “ the rule is well settled that ‘ in the case of a naked power, not coupled with an interest, the law requires that every prerequisite to the exercise of that power should precede it.’ ” In Burke v. Burke (170 Mass. 499, 500) the court say: “ When one seeks to show that the title of another has passed to himself by virtue of statutory proceedings, he cannot prevail without proving that everything has been done which the statute calls for as a condition precedent to the transfer of the property.”
The right to levy a tax upon the property of the plaintiff, in common with other taxpayers, for the purchase of real estate or water rights, is conditioned upon the performance of the prerequisites prescribed by the laws of this State; it is a mere naked jjower, depending wholly upon statutory authority, and the creation of specific means excludes others. (Wells v. Town of Salina, 119 N. Y. 280, 296; People ex rel. City of Rochester v. Briggs, 50 id. 553, 559; Mayor v. Ray, 19 Wall. 468, 475.) If, therefore, “ an act for the protection of taxpayers ” is to accomplish its purpose and protect taxpayers, the courts must intervene whenever it is made to appear, in a proper action, that the person or officer assuming to act in behalf of a municipal corporation is involving the corporation in an indebtedness to be met by taxation, or by the use of the public funds, in a manner not authorized by the law. The rule, as we have already pointed out, is well settled that the “ authority of a municipal cor7 poration to take private property must be expressly conferred, and
Having thus called attention to the rules of law governing the conduct of municipal corporations and those acting or pretending to act in their behalf, let us consider the facts in this case. The plaintiff owns a water works plant near Valley Stream, in the county of Nassau, and supplies the fifth ward of the borough of Queens in the city of New York and a number of villages in the county of Nassau. The watershed from which the plaintiff secures its water supply is located between the two watersheds which supply respectively the city’s Valley Stream reservoir and Hempstead reservoir. The city proposes to build what is known as a filtering gallery directly across the watershed of the plaintiff, and thus, it is alleged, intercejDt substantially all of the water which falls upon said watershed, but we are not concerned with this view of the question at this time. It appears that the commissioner of water supply, gas and electricity of the city of New York prepared a map showing certain parcels of land on the plaintiff’s watershed and that the board of estimate and apportionment approved said map and authorized the commissioner to purchase the land shown thereon at private sale for the purpose of increasing the water supply of the city of New York. The resolution of the board of estimate
If the Legislature intended this result it has carefully veiled that
It seems to us entirely obvious, however, that the only authority for the purchase of property in connection with the increase of the water supply of the city of New York, whether it be in the borough of Brooklyn or in The Bronx, must be found in the provisions of the revised charter dealing with this general subject, and not in the devolved powers, for it is specially provided by section 471 that no contract in relation to the matter shall be made “ save in accordance with the provisions and requirements of this act.” Have these pro
Can there be any reasonable doubt that the Legislature intended, in using the words “ any real estate laid down on said maps,” to confine the powers of the commissioner and board of estimate and apportionment to the maps provided for in the sections cited? The rule is elementary that effect must be given to the whole of the language used, if it be plain and do not lead to anything manifestly so unjust or absurd that it cannot be assumed the Legislature really
The order appealed from should be reversed and the injunction should be granted.
Goodrich, P. J., and Hooker, J., concurred; Bartlett and Hirschberg, JJ., dissented on the grounds briefly stated in the opinion of Mr. Justice Wilmot M. Smith at Special Term.
Order reversed and motion for injunction granted, with costs to ■abide the final award of costs.
Opinions of Mr. Justice Wilmot M. Smith on denial of motion at Special ‘Term:
Smith, J.:
In my opinion the power of the city of Brooklyn to purchase land at private sale for the purpose of extending its water supply, which existed at the time of consolidation, was intended to he preserved by section 517 of the charter,
Motion denied.
Second opinion of Mr. Justice Wilmot M. Smith:
Upon this motion the court has decided that the power of the city of Brooklyn to purchase land at private sale, for the purpose of extending its water supply which existed at the time of the consolidation, was intended to be preserved to the city of New York by section 517 of the charter.
It seems to me it was the intention of the charter
Motion denied, without costs.
Laws of 1901, chap. 466.— [Rep.
Law’s of 1901, chap. 466.— [Rep.