Town of Kirkwood v. . Newbury

Potter, J. The main question in this case is whether the board of supervisors, under the existing law of this state, may, upon application of one of two towns in the same county separated by a stream, and against the wishes of a majority of the voters as expressed in town meeting and without the consent of its officers authorized to give consent, direct the building of a highway bridge across such streams and levy a tax upon tax-payers of the latter town to defray in part the expenses of building such bridge. The court below held that the board of supervisors of a county so situated had such power. The question is one of sufficient general interest and importance, to receive the sanction or dissent of this court, notwithstanding the bridge has been completed and paid for by the *576 levying and applying the taxes raised for that purpose in part from the town objecting to the project, while this action brought to test that question has been pending. We think the judgment of the court below in this case should be affirmed, and in view of the able and elaborate review and construction of the various statutes involved in this case when it was before the trial court, it will not be necessary or advisable to extend the discussion to any considerable length. I cannot think it necessary to cite authorities in support of the proposition that, originally and as one of the attributes of sovereignty, the power to lay out highways and to build bridges-connecting them over streams for the use of the public and to-levy taxes for that purpose, inheres in the law-making poweiof the state. The law-making power may, in the exercise of its own discretion, or under the direction of a written constitution, delegate the exercise of such power to the board of supervisors, the subordinate local legislature of the several counties of the state- The Constitution of this state (§ 18 of art. 3), not because-the power to make all laws does not belong to the legislature, but, doubtless, to save the time of the general legislature and to place certain powers of legislation nearer the people for whose benefit they are to be exercised, restrains the general legislature from passing any private or local bill for the building of a bridge, and section 23 of the article provides: “ The legislature shall, by general laws, confer upon boards of supervisors of the several counties of the state such further powers of local legislation and administration as the legislature may from time to time deem expedient.” The legislature has accordingly conferred upon the boards, of supervisors the power of laying out highways and the: building of bridges, and prescribed the conditions upon which the boards of supervisors may exercise such power. The acts which have been passed by the legislature from time to time prescribe the changes which it has deemed it advisable to make upon this subject. *577 The act, chapter 451 of the Laws of 1885, passed by the legislature of the state June ninth, amending chapter 482 of the Laws of 1875, prescribes the conditions upon which boards „ of supervisors may exercise the power of building bridges, and the findings of the trial court in this case show that the conditions prescribed by the above-cited chapter 451 of the Laws of 1885 existed when the board of supervisors of Broome county assumed to authorize the building of the bridge in question, and provided the means therefor by the levying of the taxes upon the towns of Conklin and Kirkwood. We think by the change of the laws effected by chapter 451 of the Laws of 1855, the board of supervisors of a county having within it two towns separated by a stream may, upon the proper application of one of such towns, enact a law authorizing and compelling the erection of a bridge over said stream to connect highways in said towns, and impose a tax uj>on said towns to pay the expense thereof, though a majority of the tax-payers of one of such towns and its officers are opposed to it, however such opposition may be indicated. (People ex rel. Otsego Co. Bk. v. Board of Suprs., 51 N. Y. 401; People ex rel. McLean v. Flagg, 46 id. 401; People ex rel. Kilman v. McDonald, 69 id. 32.) In order to warrant the conclusion of a court that the legislature intended to change a statute where there is but slight change in the phraseology of the later statute, it is not always necessary to find a reason for the change, but it seems to me that it would not be difficult to suggest a reason for a change of the former statute by the statute' under consideration. If the former statute had not been changed, as we think it has been, a bare majority of the tax-payers of a town could bar the way, perhaps the most convenient and necessary for the rest of the inhabitants of that town, and of the entire public outside of that town, into or through such town at the most accessible point. Having reached the conclusion that the decision of the court below, upon the ground upon which it is placed, should be affirmed, I have not deemed it worth while to discuss the *578 other points presented hy counsel for the respondent in relation to the effect of the act of the legislature legalizing the „acts and proceedings of the board of supervisors involved in this action, passed before the action was commenced ; or that this action sought no other relief than to restrain the issuing of bonds by the respondents, and that the bonds have been issued and paid before the argument of this appeal, or whether this action is maintainable by the town, or whether the undisputed facts in this case constitute a cause of action upon the equity side of the court to restrain the issuing of bonds where there is want of a defense at law. I think the judgment should be affirmed, with costs. All concur except Follett, Ch. J., not sitting. Judgment affirmed.