14 N.Y.S. 421 | N.Y. Sup. Ct. | 1891
The plaintiff in this case seeks a remedy.under the provisions of section 1925 of the Code of Civil Procedure,, as supplemented by chapter 531 of the Laws of 1881,. and chapter 673 of the Laws of 1887. Under these statutes it was held by the court of appeals in Talcott v. City of Buffalo, 26 N. E. Rep. 263, that the remedy was confined to cases where the acts complained of are without power, or where corruption, fraud, or bad faith amounting to fraud is charged; it being said that the terms “waste” and “injury” used in the statute “comprehended only illegal, wrongful, or dishonest official acts, and were not intended to subject the official action of boards, officers, or municipal bodies acting within the limits of their jurisdiction and discretion, but which some tax-payer might conceive to be unwise, improvident, or based on errors of judgment, to the supervision of the judicial tribunal.” Upon this basis the questions in this case are: (1) Whether the act of 1889 is unconstitutional by reason of its title, as in violation of section 16, article 3, of the constitution, which provides that no local or private bill shall embrace more than one subject, and that shall be expressed in the title. (2) Whether the provisions in the act of 1889 for the issuing of bonds are invalid, under section 11 of article 8 of the constitution of this state, by reason of the term of the bonds exceeding 20 years, and the absence of any provision for a sinking fund. (3) Whether section 18 of the act, as amended in 1890, is. in violation of section 6 of article 7 of the constitution, which provides that the legislature shall not sell, lease, or otherwise dispose of the Erie canal, or is in violation of section 9 of article 1 of the constitution, which provides for the assent of two-thirds of each branch of the legislature to every bill appropriating the public moneys or property for local or private purposes.
1. The title of the act of 1889 is “An act to establish and maintain a water department in and for the city of Syracuse. ” The claim is that this does not adequately express the subject of the act, which is to supply the city of Syracuse with water. In People v. Briggs, 50 N. Y. 554, it was held that the title, “An act to amend the several acts in relation to the city of Rochester,” expressed a subject broad enough to embrace all the details of the charter and government of the city of Rochester. In Astor v. Railroad Co., 113 N. Y. 93, 110, 20 N. E. Rep. 594, it is said: “When the subject is expressed, all-matters fairly and reasonably connected with it, and all measures which will or may facilitate its accomplishment, are proper to be incorporated in the act, and are germane to the title. The title must be such, at least, as fairly to suggest or give a clue to the subject dealt with in the act, and unless it comes up to' this standard it falls below the constitutional requirement. ” In Cooley, Const. Lim. 172, it is said: “The generality of a title1 is, therefore, no objection to it, so long as it is not made a cover to legislation incongruous in it*
2. Section 11 of article 8 of the constitution is as follows: “Sec. 11. Mo county, city, town, or village shall hereafter give any money or property or loan its money or credit to or in aid of any individual, association, or corporation, or’become directly or indirectly the owner of stock in or bonds of any association or corporation; nor shall any such county, city, town, or village be allowed to incur any indebtedness except for county, city, town, or village purposes. This section shall not prevent such county, city, town, or village from making such provision for the aid or support of its poor as may be authorized by law. Mo county containing a city of over 100,000 inhabitants, or any such city, shall be allowed to become indebted for any purpose or in any manner to an amount which, including existing indebtedness, shall exceed ten per centum of the assessed valuation of the real estate of such county or city subject to taxation, as it appeared by the assessment rolls of said county or city on the last assessment for state or county taxes prior to the incurring of such indebtedness; and all indebtedness in excess of such limitation, except such as may now exist, shall be absolutely void, except as herein otherwise provided. Mo. such county or such city whose present indebtedness exceeds ten per centum of the assessed valuation of its real estate subject to taxation shall be allowed to become indebted in any further amount until such indebtedness shall be reduced within such limit. This section shall not be construed to prevent the issuing of certificates of indebtedness or revenue bonds issued in anticipation of the collection of taxes for amounts actually contained or to be contained in the taxes for the year when such certificates or revenue bonds are issued and payable out of such taxes. Mor shall this section be construed to prevent the issue of bonds to provide for the supply of water, but the term of the bonds issued to provide for the supply of water shall not exceed twenty years, and a sinking fund shall be created on the issuing of the said bonds for their redemption by raising annually a sum which will produce an amount equal to the sum of the principal and interest of said bonds at their maturity. The amount hereafter to be raiséd by tax for county or city purposes in any county containing a city of over one hundred thousand inhabitants, or any such city of this state, in addition to providing for the principal and interest of existing debts, shall not in the aggregate exceed in any one year two per centum of the assessed valuation of the real and per-’ sonal estate of such county or city, to be ascertained as prescribed in this section in respect to county or city debt.”' The claim of the defendants is that the provision as to bonds issued to provide for the supply of water applies only to cities containing over 100,000 inhabitants. The claim of the plaintiff is that the provision is general, and applies to all cities. It is conceded that the city of Syracuse has less than 100,000 inhabitants. Section 11, as it now stands, was adopted in Movember, 1884. It was made up of section 11 as it existed prior to that date, adding thereto the provisions commencing with the words, “Mo county containing a city of over one hundred thousand inhabitants, or any such city,” etc., to the end of the section, so that prior to 1884 no county, city, town, or village could give any money or property or loan its money or credit to or in aid of any individual or corporation, or incur any indebtedness except for county, city, town, or village purposes. An exception was made in favor of the poor, apparently upon the idea that the general.inhibition of gifts of money or property to or in aid of any one would unless quali
3. Does section 18 of the act, as amended in 1890, appropriate the public property for local or private purposes? It is conceded that the law did not have the two-thirds assent required by the constitution, and it was a local act. People v. O’Brien, 38 N. Y. 194. This is not disputed. Was there an appropriation of public property? The city, through its water board, was authorized to take and conduct from Skaneateles lake water not required for the Erie canal, through a pipe not exceeding 30 inches in diameter. Before doing this, however, the city must increase the storage capacity of the lake sufficiently to store therein all the ordinary flow of its water-shed, and must acquire or extinguish all water-power rights upon the outlet of the lake to be affected by such storage. The work authorized by the section must be done under the direction and control of the superintendent of the public works, and in accordance with plans and specifications prepared or approved by the state engineer, and the dam and all structures connected therewith, arid the regulation of the flow of water from the lake into the pipe, should continue in the exclusive charge and control of such superintendent, and shall by or under his direction be maintained and kept in repair at the expense of the city. If for any reason the flow of water into the pipe should prevent the state from having a sufficient quantity for all the uses of the Erie canal, the superintendent was authorized and required to stop such flow, in whole or in part, so far as might be necessary in his judgment to secure such sufficient quantity, “it being understood that the rights of the city of Syracuse hereby conferred in and to such surplus waters are to be subject always to the superior claims of the state thereto. ” The board was given full power to do and. perform all acts and things necessary or proper to enable the city to acquire, store, and obtain water from the lake in accordance with the provisions of the section. In substance the city was given the surplus waters as such surplus might be determined by the state officers, without reference to whether such surplus was greater or less than the additional storage to be furnished at its expense. The expression “superior claims,” used in the clause above quoted, had ref
The appropriation of 1843 was in form permanent and absolute. In this respect it differs from the case of Manufacturing Co. v. State, 104 N. Y. 562, 11 N. E. Rep. 264, where the state possessed only the rights of the Seneca Lock navigation Company, and those were expressly limited to the use of only so much as was necessary for the purposes of navigation, and upon that ground a liability for waste was held to exist against the state. There is no doubt that in fact this was a permanent appropriation, and in such a case, as said in Heacock v. State, 105 N. Y. 248, 11 N. E. Rep. 638, under the Revised Statutes then in force (sections 46, 48, pt. 1, c. 9, tit. 9, p. 484, 1 Rev. St., 4th Ed.) it was provided that the state should take a fee, and, unless the land-owner applied for compensation within one year, his right should be deemed extinguished. See, also, Mark v. State, 97 N. Y. 572. In such a case, if the use for the purposes of a canal was abandoned, the property would not revert. Rexford v. Knight, 11 N. Y. 308; Railroad Co. v. Slaight, 1 N. Y. Supp. 554; Cooley, Const. Lim. (6th Ed.) 688. If the statute authorized the entire ownership to be taken, and the appropriation followed the statute, the fact that all might not be needed for the use of the canal would not reduce the extent of the right taken. In Sweet v. Railroad Co., 79 N. Y. 293, it was held that a fee may be taken, although the public use for which the land is to be taken is special, and not of necessity permanent- or perpetual; and that, when a statute authorizes the taking of a fee, it cannot be held invalid, or that an easement only was acquired thereunder, on the ground that an easement only was required to accomplish the purpose in view. It is also to be borne in mind that in 1843 there was a statute (pt. 1, c. 9, tit. 9, Rev. St. § 75 etseq.) providing for the sale of surplus waters, thus indicating that the appropriations of that character were not simply of so much as was necessary for the uses of the canals. It seems to me, therefore, that we must assume that the appropriation of 1843 was not simply of what was required for the Erie canal, but was just as broad as the resolution of the canal board made it,—“the waters of Skaneateles lake, and the outlet of the same.” It would then follow that when the act of 1890 assumed to give to the city of Syracuse the right to take waters “not required for the- canal,” it would, if operative, give to the city the benefit of a portion of the title of the state; in other words, appropriate public property. Under the appropriation as made by the canal board the state was entitled to take and have delivered through the outlet to the point where the state dam at the foot of the outlet is erected all the flow from Skaneateles lake. The state, at its dam at the foot of the outlet, could either turn the water into the canal or into the Seneca river, or, under the law as it then stood, sell the surplus. Suppose, as claimed by the defendants, that the riparian owners along the outlet had a right to use the water as it passed along, that would not give them any right to divert it, and prevent its delivery at the foot of the outlet; and the city, as their grantee, would obtain no such right. Yo one but the state could give the right to divert. In doing so it would part with a right to property. There is another feature of the case which is of some importance on this question. The state, by its appropriation in 1843 and subsequent improvements, became the possessor and owner of a complete reservoir. The act of 1890 gives to the city of Syracuse the right in perpetuity to use this reservoir for the purpose of
Judgment accordingly. All concur.