
    The People ex rel. The Trustees of the Village of Jamaica et al. v. The Board of Supervisors of Queens Co.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 14, 1891.)
    
    1. Highways—Supebyisobs—Cbbtiobabi.
    The power of a board of supervisors to pass an act for the improvement of roads in a town is reviewable on certiorari.
    
    2. Same—Laws 1869, chap. 855.
    Under § 2, of chap. 855, Laws 1869, the board of supervisors has power to authorize the improvement of highways in a town, and the issuing of bonds therefor, upon a vote of two-thirds of the board, including” the affirmative vote of the supervisor of the town, without the consent of the town officers. The fact that a village is within the town is immaterial, as the power of the board includes the roads in such village.
    Certiorari to review action of the board of supervisors in passing an act providing for the improvement of public highways in the town of Jamaica, and authorizing the issue of bonds for that purpose.
    
      A.N. Weller, for relators; Francis FI. YanYechten, for def’t.
   Barnard, P. J.

The board of supervisors of Queens county on the 25th of May, 1891. enacted that certain streets and highways in the town of Jamaica be improved, and that an issue of bonds to the amount of $400,000 be issued by the county of Queens for the purpose of defraying the expense. These bonds were to pay principal and interest out of the taxable property of Jamaica. The interest was payable semi-annually, and the principal in 1921. The village of Jamaica is entirely situated within the limits of the town of Jamaica, and was incorporated by the legislature by chapter 168, Laws of 1814. By this charter and the amendments thereto the village is made a separate road district, and placed under the control of the trustees of the village with the powers of commissioners of highways. The supervisors direct the improvement of roads as well in the town as in the village. The trustees of the village and certain taxpayers of the town obtained a writ of certiorari to review the power of the board of supervisors to pass the act in question. This is the proper remedy. The writ in such a case was given at common law, and the statutes have not taken it away. Section 2124 of the Code continues the common law writ. The court of appeals have acknowledged the scope of the writ to embrace assessors. People v. Assessors, 39 N. Y, 81.

The jurisdiction of the board of supervisors is subject to review by this writ. People v. Queens County Supervisors, 82 N. Y., 275.

The important question is whether the supervisors had the power to make the. record. The power is claimed to be conferred by chap. 855, Laws of 1869. By the first section of this act the power to issue bonds on the credit of a town is to be exercised with the consent of the town officers. ISTo such consent was obtained. By the second section of this act certain powers are given to boards of supervisors on a two-third vote of the board, which, includes the affirmative vote of the town supervisor. This was obtained. The scope of this second section has been passed upon by the court of appeals in the case of The People v. Supervisors of Queens County, 112 N. Y., 585; 21 St. Rep., 771.

The court says that the exercise of the power under the second section is free from the restriction contained in the first section, so that a vote of two-thirds of the supervisors with the affirmative vote of the supervisor of the town affected by the vote is all that is needed. This second section provides for the improvement of public highways laid out in pursuance of law. If the power is given no extravagance in its exercise by the legal tribunal to which the power is given will give this court any right of review. The fact that the village is within the town has no relevancy. If the legislature gives the power generally over all roads in a town, it includes roads in the village. People ex rel. Morrell v. Queens Co. Supervisors, 48 Hun, 324; 15 St. Rep., 860.

Where the power to compel the debt exists the power to postpone the payment of the principal exists with it. People ex rel. etc., v. Flagg, 46 N. Y., 401.

The second section gives no express power to bind the county or town, but this is implied in the duty or authority given. Mayor, etc., v. Sands, 105 N. Y., 210; 7 St. Rep., 337.

The act of the supervisors should, therefore, be affirmed, with costs.

Dykman and Pratt, JJ., concur.  