Kingsley v. Bowman

Adams, J.: The concessions of counsel have simplified the issues herein somewhat, and, so far as the matters still in controversy are concerned, we find that there is much in the case upon which the plaintiff rests her contention which may be disposed of without extended discussion. [4] In Í884 the Legislature of this State, enacted a law which was designed to provide “ for the ÍDetter collection of taxes in the county of Erie,” and this act (Laws of 1884, chap. 135, .§ 14) directs that notices of tax sales shall be published in. two newspapers in the city of Buffalo, “ one of which shall be the official paper of the county,” and that the compensation therefor shall, within certain specified limits, be fixed by the board of supervisors at their annual session in each year. Inasmuch as the- resolution which awarded the contract for publishing, such notices to the Buffalo, Commercial was'preceded by another designating that as the official paper of the county, and it being conceded that the price agreed upon' for such publication was within the statutory limit, there seems little opportunity for charging the defendants with a- violation of the law, or even with an abuse of the discretionary power which the statute vests in them in selecting that paper as the medium ..through which notices of tax sales should be given to the public. - And the situation is virtually the saíne as respects the publication of the proceedings of the board in pamphlet form, for, by section 18 of chapter 686 of the Laws of 189.2, known as the “ County' Law,” it is provided that: “Each board of supervisors shall cause as. many copies of the proceedings of its' session, - certified by its chairman and clerk, to be printed as a county charge in a pamphlet volume as soon as may be after each session, -as they may deem necessary, for exchange with other boards,, and for the members of the board and other town and county .officers.’’ The most casual reading of this statute makes it clear, we think, that while it commands the. board of supervisors to publish its proceedings in a pamphlet form, it does not specify the number of pamphlets to be published, nor . fix any limit to the price to be paid there^for, but very properly leaves these -matters to be determined by the board in the exercise of its discretion. ■ Awarding the contract for printing these pamphlets to the Commercial at a price which slightly exceeded that at which the publisher of the Mercantile Review offered to do the same work; may . possibly have amounted to an abuse of the discretionary power - which the Legislature had thus conferred upon the defendants, but if so that fact would not, in the absence of any allegation of bad [5] faith, authorize the' plaintiff to maintain this action. (Talcott v. City of Buffalo, 125 N. Y. 280.) When, however, we come to consider the matter of publishing the daily proceedings of the board, some very different questions present themselves for our consideration, and the first and most important thing to be observed in this connection is that the action of the defendants in inviting and accepting proposals for this particular work is entirely without statutory authority. Section 17 of the County Law, which directs that all acts or resolutions passed by the board of supervisors “ within six weeks after the close of each session (shall be) published in the newspapers in the county appointed to publish the session laws of the legislature,” has no reference to the ordinary proceedings of the board, but only to such as are legislative in their character, and within the scope and authority of section 27 of article 3 of the State Constitution. But it- is insisted that the furnishing of .the printed copies of the daily proceedings may be regarded as in the nature of “ supplies,” which the defendants were authorized to provide themselves with by what is known as the “ County Auditor Act ” (Laws of 1895, chap. 173), the 6th section of that act, which is the one invoked in support of this proposition, providing that, “Keepers of county institutions and county officials may pmrchase for the use of such institutions or offices all supplies necessary for their support and maintenance; all accounts for which shall be presented to the county auditor, to be examined by him, as prescribed in this act. “ If directed by the board of supervisors, with or without the recommendation of the county auditor, supplies for such county institutions or officers shall be purchased under contract let to the lowest bidder, upon a notice publicly announced in a manner and form prescribed by the board of supervisors.” It .would require, we fancy, a very strained construction of this statute to find in it any warrant for the expenditure of public moneys to defray the expenses of publishing the daily proceedings of the board of supervisors of a countyfor even if the papers containing such proceedings can be regarded as necessary supplies, the board is not a “ county institution,” neither are its members “ county officials,” and consequently they are not within either the letter or the intent of the section above quoted. [6] ■. But without dwelling any longer .upon this feature of the case it may be remarked that the board of supervisors,, while created by the Constitution (Art. 3, § 26),- derives all its powers to act from the State Legislature. It cannot, therefore, .be said to possess any. inherent powers, but its exercise of authority must in all cases, and especially in the expenditure of public nioneys, be' confined to the powers which are conferred by law, and enumerated in the statute conferring them. (Brady v. Supervisors, 10 N. Y. 260; Parker v. Supervisors, 106 id. 392, 410.) It would seem to follow, therefore, that the attempt upon the part of the defendants to carry into effect so much of the resolution.of February first as contemplates the publication of the daily record of their proceedings at the expense, of the county was an illegal exercise of power, and consequently the court would be- justified in restraining such action at the instance of a resident taxpayer who., in good faith, invoked its aid. (Code Civ. Proc. § 1925.; Talcott v. City of Buffalo, supra ; Ziegler v. Chapin, 126 N. Y. 342; People ex rel. Trustees, etc., v. Supervisors,: 131 id. 468.) We conclude,, therefore, that the order appealed from should be reversed. All concurred.