77 A.D. 501 | N.Y. App. Div. | 1902
This is a taxpayer’s action, and the rule is well settled that in actions of this character the court in the exercise of its discretion may properly grant the plaintiff an injunction, and that it will be sustained unless “ we are able to see on an examination of the complaint that he is clearly and certainly not entitled to the ultimate relief which he seeks.” (Ziegler v. Chapin, 126 N. Y. 342, 347; Warrin v. Baldwin, 105 id. 534, 537; Armstrong v. Grant, 56 Hun, 226, 228, 229. See, also, Peck v. Belknap, 130 N. Y. 394, 398, 399; Webb v. Bell, 22 App. Div. 314, 318, 319.) An examination of the complaint in this action discloses no reason for believing that the plaintiff may not ultimately succeed in establishing his right to the permanent injunction prayed for, and it would be improper, therefore, to interfere with the order appealed from.
Westchester county is a municipal corporation (County Law, Laws of 1892, chap. 686, § 2), and the rule is fundamental that municipal, like private, corporations must act within the limitations prescribed by the sovereign power, and they cannot impose a charge upon the person or property of individuals unless they proceed in the manner prescribed by law. (Matter of Petition of George Douglass, 46 N. Y. 42; Dickinson v. City of Poughkeepsie, 75 id. 65, 73 ; Kingsley v. Bowman, 33 App. Div. 1, 6 ; Matter of South Market Street, 76 Hun, 85, 91.) The plaintiff in this action is a taxpayer ; his property is about to be taken to pay bills for which, if the allegations of his complaint are true, there is no warrant of law. He has, therefore, all of the rights which any other citizen has whose property is about to be taken without due process of law. In such an action as the present one the plaintiff is not bound to show that he will suffer peculiar injury; he is appearing in behalf of himself and all other taxpayers, and it is enough for him to show that he has the status as a taxpayer which the statute prescribes and that the act of the defendant is one which the law forbids. (Gerlach v. Brandreth, 34 App. Div. 197,199 ; Bush v. O’Brien, 164 N. Y. 205, 215 ; Ayers v. Lawrence, 59 id. 192; Gorden v. Strong, 158 id. 407, 408 ; Wenk v. City of New York, 171 id. 607, 614, 615, and authorities there cited.)
The defendants' who appeal are the owners of certain newspapers published in Westchester county, and have been publishing, upon
“ 1. An abstract of all county accounts presented to the board at its last annual meeting, allowed or disallowed, with the amount claimed and allowed, and the name of each person presenting the same, and the general nature of the account.
“ 2. The amount, items and nature of all compensation, audited by the board to each member thereof.
“ 3. The number of days the. board was in session, and the distance traveled by each member in attending the same.”
Section 170 of the Town Law provides : “ Boards of town auditors shall annually make brief abstracts of the names of all persons
Clearly the purpose of the statute was not to give every person in the county a detailed statement of accounts, but to require a. publication of an official nature which might be found and investigated if abuses crept in, and the statute clearly required that all of the matters mentioned in section 51 of .the County Law should be grouped together in a single publication, so that the seeker after-information might find it all in one place. Instead of doing this,, the clerk of the board of supervisors, with the approval of the-, board of supervisors, as evidenced by a formal resolution, has been in the habit of making up the abstracts of certain towns and publishing them in papers which, we may assume, he believed would give the largest notice to the people directly interested in the,accounts, while other towns were parceled out to other newspapers, in other parts of the county, but in none of them, or at least in very few of them, has he published all of the matters required to. be published by the County Law. There is no authority for publishing the abstract of town accounts for a few towns in one part of the county and a few more in another part of the county. The-authority of the statute, and there is no other, is to publish these: matters in “ a newspaper printed in the county,” and when that has been done the authority is at an end, and all of the legitimate purposes of the law have been served. It has not been complied with, by cutting these matters' up into parcels and distributing them, among thirty or forty newspapers, so that the searcher after the: financial records of the towns and county will never know wdien lie-has them all, and the defendant newspapers, in contracting with aii official of the municipality, are bound to know the limitations on his powers. So far as we discover, there has been no legal publication such as the statute requires, certainly not on the part of a large-majority of the claimants, and the contract cannot be ratified by either party, because it could not have been authorized by either ; no performance on either side can give the unlawful contract any validity or be the foundation of any right of action upon it. When
The order appealed from should be affirmed, with costs.
All concurred, except Jenks, J., not sitting.
Order affirmed, with ten dollars costs and disbursements.