
    City of Oneida, Plaintiff, v. Clarence N. King, Defendant.
    Third Department,
    November 14, 1906.
    Municipal corporations—city of Oneida—when bonding of city to pay sewer assessment not authorized.
    The provisions of the charter of the city of Oneida authorizing the common council to make extraordinary expenditures “ for the benefit of the city "and after an affirmative vote by taxpayers to bond the city, does not warrant the issuance of bonds to pay a sewer assessment already levied upon private owners benefited and adjudged to be a valid assessment in a prior action. It is not “ for the benefit of the city ” to assume assessments laid on individuals.
    Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure.
    The point of this controversy is the legality of an issue of bonds of the city of Oneida, amounting to $11,560.76.
    Said city was incorporated by chapter 225 of the Laws of 1901, as amended by chapter 273 of the Laws of 1904. Pursuant' to the provisions of this charter it completed in'1903 the construction of a sewer. The expense thereof was partly assessed on the city at large and partly on property owners deemed to be specially benefited thereby. Such assessments were made according to the charter provisions. The portion of the expense which was assessed on the city at large has been paid or provided for by the city, and no question here exists concerning the same.
    Certain of the. property owners against whom special assessments had been made on the ground that they were specially benefited" made' objections to such assessments. But such -assessments were confirmed by both the board of public works and the common council of the city. Said property owners then brought an action to have the assessments declared illegal and to restrain the collection thereof. On the.trial of the "action judgment was granted dismissing the complaint and upholding the 'proceedings for the construction of the sewer and for making said assessments. An appeal was taken from such judgment to this court, and the judgment -lias been affirmed, without opinion. (House v. City of Oneida, 113 App. Div. 893.) The validity of said assessments has thus been judicially declared, and no question is or can here be made in respect thereto.
    Thereafter, pursuant to the request of said property owners, the common council of the city provided for a special election of taxpayers to vote on" a proposition as to whether bonds of the city should be issued in the said sum of $11,560.-76, the proceeds thereof ■ to be used toward the payment of the- assessments for the ’cost of said sewer construction, said sum to be applied toward the payment of such assessments in proportion to the .amount assessed against each person. At such election the proposition was carried. The common council prepared the bonds and advertised them for -sale. The defendant having made the highest bid therefor, they were awarded to him. Thereafter he refused to accept and pay for the bonds on the ground of their illegality.
    
      J. F. Connor, for the plaintiff.
    
      F. L. Hunt, for the defendant.
   Cochrane, J.:

It is not apparent, just how the amount of this bond issue was arrived at nor is it material. The purpose thereof is to relieve individual property owners of a portion of the assessments which have been levied against their property for this public improvement, and which assessments, under the provisions of the city charter, are liens against their property, and are concededly enforcible against the same, and the legality of which is unquestioned.

The ¡lower of the city to issue these bonds must be derived from some legislative enactment. (Wells v. Town of Salina, 119 N. Y. 280.) Such power is claimed to exist in" subdivision 25 of section 59 of the city charter, as amended, which, so far as pertinent to this question, provides that “Whenever the common council shall resolve, by the affirmative vote of a majority of all its members, that an extraordinary expenditure ought for the benefit of the city to be made for any specific purpose set forth in the resolution, it shall make an estimate of the sum necessary therefor,” and ■ then it provides for the submission "of the question to a vote of the; taxpayers and for raising such sum by taxation or bonds, prescribing the procedure which has been followed in this case and which has resulted "in the bonds in question.

Underlying all expenditures authorized by this statute there is the basic principle that such expenditure must be “for the benefit of the city.” I am at a loss to discover by what reasoning .process it can be claimed that this proposed expenditure is to benefit the city. It is prejudicial to the city without an equivalent therefor. It benefits not the city but individual taxpayers at the expense of the city. If it be urged that these special assessments are unjust to the property owners affected thereby, in that the latter are subjected to an unfair proportion of the cost of this city improvement, it may be said in answer that no system of taxation has yet been devised resulting in an absolutely fair distribution of the public burden. Equality of taxation is one of the unsolved problems which has engaged the attention of political economists since Adam Smith published his Canons of Taxation. It is one of the bright iridescent dreams of the future scarcely to be hoped for, much less expected, as long as mental activities 'are circumscribed by human limitations. No equitable reason appears why these property owners should be relieved from this taxation which would not equally apply to a very large proportion of the inhabitants of the State who are burdened with taxation, and who perchance may bear a greater proportion of such burden than their more fortunate neighbors. But whether these taxes are inequitable and unduly burdensome is not the question. They have been lawfully assessed and are collectible. Hence the bonds in question would relieve these particular taxpayers from the payment of their taxes, but in no sense would they benefit the city. r ■ '

It clearly is hot the purpose of this net to relieve persons from lawfully imposed. taxation. The act contemplates expenditures, which in some way will prove-beneficial to the city and which will not merely prove beneficial to some of the taxpayers of the city at the expense of the latter. This proposed expenditure does not subserve any municipal ■ purpose. The expenditure for the sewer was, in the language of the statute, “ an extraordinary expenditure,”' and “for the benefit of .the city.” But that has been provided for and:is an accomplished fact. This proposed expenditure is not for the purpose of constructing the sewei1,.but for-the purposeof relieving certain taxpayers from their legal burden of contributing to the -expense of such sewer. The citation of authorities in reference' to statutes conferring power on municipalities to .raise money is uuinstructive. 8ucli were the cases of Terrel v. Wheeler (49 Hun, 262 ; 2 N. Y. Supp. 86 ; affd:,123 N. Y. 76; 33 N. Y. St. Repr. 404); Lamb v. Connolly (122 N. Y. 531) ; Cayuga County v. State of New York (153 id. 279), cited by plaintiff. Here no stich power is granted by the statute in question for the proposed ' expenditure. The common council was not authorized thereby to submit, to the taxpayers of the city any such proposition as was'voted on, and nil proceedings^ reference to such proposition were void and the bonds are illegal. . •

.' All concurred.

Judgment ordered for defendant, with costs.  