
    Matthew Barker, App’lt, v. The Town of Oswegatchie, George E. Morris et al., Resp’ts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November 30, 1891.)
    
    1. Towns—Bridges—Power op board op supervisors to authorize raising OP MONET POR.
    A board of supervisors may act on a question of authorizing a town to borrow money to erect a bridge either, when the town by a vote of a majority of the voters at a general or special town meeting directs it, or when the supervisor of the town with the consent of the other town officers mentioned in the act of 1875 applies for that purpose.
    2. Same.
    The statute does not in terms require the consent of all the justices of the town.
    3. Same—Injunction.
    An injunction restraining action by the town officers under a void resolution of the board of supervisors does not prevent a proper application by the supervisor to the board.
    (Landon, J., dissents.)
    Appeal from an order made at St Lawrence special term, setting aside an injunction pendente lite granted by a justice of this court
    The action is prosecuted in the name of a taxpayer of the town of Oswegatchie in St. Lawrence county to restrain the town, its supervisor, and board of town auditors and commissioner of highways, also the board of supervisors of St. Lawrence county, and certain commissioners appointed by such board from further action under a bill or resolution of the board of supervisors of St. Lawrence county passed May 15, 1891, and from taking any action or proceeding in disregard of the contract of the Berlin Iron Bridge Go. with Joseph E. Wagner, sole commissioner of highways of the town of Oswegatchie, for the construction of a bridge at Eel Weirrajrids in such town.
    On the complaint and affidavits a temporary injunction was obtained ex parte before a judge, which was vacated on a motion; on notice founded on the answer and affidavits, in behalf of the defendants, at special term and from the order of the special term the plaintiff appeals.
    
      A. D. Wales, for app’lt; Daniel Magone, for resp’ts.
   Mayham, J.

The injunction order vacated at the special term and from the order vacating which this appeal is brought first enjoined the defendants from acting under the bill passed by the supervisors of St. Lawrence county on the 15th day of May, 1891, in relation to the construction of the Eel Weir rapids bridge, and. also enjoined any interference with the contract made for the construction of such bridge between the Berlin Iron Bridge Co. and Wagner as commissioner of highways.

The principal grounds indicated in the plaintiff's complaint and affidavits used in support of the injunction in this action are: First That the act of the board of supervisors in relation to the construction, passed May 15, 1891, was illegal, unauthorized, and void, and furnishes no valid authority to the town or the commissioners appointed in such act to construct such bridge, or incur any expense in relation thereto.

Second. That the bill or act of said board of supervisors is invalid, on the ground that it is a part of an illegal conspiracy to drain Black lake by dredging out the Oswegatchie river at Eel Weir rapids, with the money appropriated for the construction of the bridge.

The contract, the performance of which is sought to be restrained and which was enjoined by the temporary injunction, was entered into and under the provisions of the act of the board of supervisors passed May 15, 1891, which purports to have been enacted pursuant to an application of the supervisor of the town of Oswegatchie, with the- consent of the commissioner of highways, the town clerk, and three of the justices of the peace of that town. The application of such officers is set out in the complaint, and as follows:

" To the Board of Supervisors of the county of St. Lawrence and State of New York:

“I, George W. Hurlbut, supervisor of the town of Oswegatchie, by and with the consent of Alexander Mayne, sole commissioner of highways of said town, and of Nathaniel Wells, town clerk of said town, and the consent of several justices of the peace of the town of Oswegatchie, which consents are hereto attached and made a part of this application, hereby applies to your Hon. Board for authority to borrow upon the credit of the town a sum not to exceed $10,000, at a rate of interest not exceeding four per cent per annum, and for authority to execute and issue the bonds of said town therefor, for the purpose of rebuilding the bridge across the Oswegatchie river at the Bel Weir rapids in said town; and also for the appointment of five commissioners for said town to construct said bridge.

“G. W. Hurlbut,

“ Dated May 2,1891.

“We, Alexander Mayne, sole commissioner of highways of the town of Oswegatchie, and Nathaniel Wells, town clerk of said town, and the several justices of the peace of Oswegatchie, do hereby consent to the foregoing application and most respecfully request your Hon. Board to grant the same.

“A. Mayfte,

Sole Commissioner of Highways.

N. Wells, Town Clerk.

“ Dak S. Giffin,

“ James A. Mack,

“Abel Colmaft,

Justices of the Peace. ”

“ To the Board of Supervisors of the County of St. Lawrence and State of New York :

I, Gr.W. Hurlbut, supervisor of the town of Oswegatchie, by and with the consent of Alexander Mayne, sole commissioner of highways of said town, and of Nathaniel Wells, town clerk of said town, and the consents of the several justices of: the peace of the town of Oswegatchie, which consents are hereto attached and made a part of this application, hereby applies to your Hon. Board for authority to borrow upon the credit of the town a sum not to exceed $10,000, at a rate of interest not exceeding four per cent, per annum, and for authority to execute and issue the bonds of said town therefor, for the purpose of rebuilding the bridge across the Oswegatchie river at Eel Weir rapids in said town, and also for the appointment of five commissioners for said town to construct said bridge.

“Dated May 2, 1891.

“G. W. Hurlbut, Supervisor

“I, George E. Morris, one of the justices of the peace of the town of Oswegatchie, N. Y., hereby consent to the foregoing and annexed application.

“George E. Morris,

Justice of the Peace.”

The first section of the act of the board of supervisors authorized the supervisor of the town of Oswegatchie to borrow on the credit of the town a sum not exceeding $10,000, and to execute bonds of the town therefor, and prescribes the denominations, times of payment, and rate of interest of such bonds and directs the levying and collection of the amounts of principal and interest, at the dates at which such bonds mature, from the taxable property of the town.

The second section prescribes the form of such bonds and the manner of their execution, directs their sale at not less than par value and the application of so much as shall be necessary for the construction of a bridge across the Bel Weir rapids.

The third section requires the supervisor of the town of Oswegatchie to execute bonds in the sum of $20,000 with sureties specified therein, to be approved by the board of town auditors, for the faithful performance of his duties under this act.

■ The fourth section of the act appoints five commissioners by name from the town to construct such bridge, and defines and prescribes their powers and duties.

The fifth section provides that the act shall take effect imme-' diately. On the 20th of May, 1891, the commissioners appointed under this act met and by resolution appointed William J. Averill, one of their number, chairman, and Daniel Magone, another member of the commission, secretary, and at the same meeting, by resolution, directed their secretary to ascertain in what time and upon what terms such bridge could be constructed and to open correspondence with builders for that purpose. On the 22d of May, 1891, at an adjourned meeting of such commissioners the “ King Iron Bridge & Manufacturing Go.” submitted a proposition to such commissioners in writing to construct such new bridge for $5,670, which proposition was, at a meeting of such commissioners, accepted by them, by resolution, on the 26th day of May, 1891. And the supervisor of the town was by a resolution of such commissioners directed to sign a contract with the King Iron Bridge Co. for the construction of the bridge, and a resolution was also passed directing the chairman to draw his order on the supervisor, payable to the King Iron Bridge Go., for $2,835 pursuant to the contract.

The affidavits disclose that pursuant to this contract the King Iron Bridge Co. had commenced work under this contract at the time the temporary injunction was granted and served.

Prior to the adoption of the amendment of article 3 of the state constitution, the power to pledge the credit of a town beyond a prescribed small limit was vested in the legislature. By the amendment of that article the legislature was authorized by general laws to confer upon the boards of supervisors of the several counties such further powers of local legislature and administration as the legislature may from time to time deem expedient. And the same amendment of the constitution divested the legislature of the power of passing private or local bills. People ex rel. Morrell v. The Board of Supervisors, 21 St. Rep., 770.

Under that authority the legislature passed chapter 482 of the Laws of 1875. By subd. 29 of § 1 of that act towns were authorized to issue bonds and borrow money for any purpose mentioned in subds. 6, 7, 20 and 23 of that act, upon the authority of an act of the board of supervisors. Subd. 6 of that act empowered the board of supervisors upon a vote of the majority of the electors voting at a town meeting to authorize a town to borrow money for the erection, repair and maintenance, in whole or in part of any bridge for the erection of which such town is liable; or upon the application of the supervisor by and with the consent of the commissioner of highways, town clerk, and justices of the peace of such town.

Under this statutory power we do not see why the supervisors might not lawfully do what they did in this case.

They may act upon a question of this character either when the town by a vote of the majority of the voters at a general or special town meeting direct it, or when the supervisor of a town, with the consent of the other town officers mentioned in the act of 1875 above referred to, applies for that purpose. This ppwer was transferred to them by the provisions of subdivision 6 of § 1 of that, act, under the provisions of § 23 of article 3 of the constitution as amended by the vote of the people in 1874, if there was any doubt of its existence before that amendment; but in the case of the People v. Meach, 14 Abb., N. S., 429, decided at special term in 1890, it was held that that power existed under the provisions of § 2 of chapter 855, Laws of 1869, and that in a proper case the board of supervisors might appoint commissioners to erect a bridge, and in that case dissolved a temporary injunction restraining the acts of the commissioners; and in the Town of Kirkwood v. Newburg, 12 St. Rep., 420, the court held that the board of supervisors on the application of a town under the provisions of subdivision 6 of § 1 of chapter 482 of the Laws of 1875, as amended by chapter 257 of the Laws of 1876 and chapter 451 of the Laws of 1885, might legally enact a law requiring two towns legally liable to maintain a bridge to each raise money to pay its share of the expense by an issue of bonds by each.

In Berlin Iron Bridge Co. v. Wagner, 32 St. Rep., 407, it was held that the special town meeting was called under the provisions of the Revised Statutes as amended by chapter 259 of the Laws of 1886, and that the town meeting under the call could not vote upon it legally, or if it should be held that it was a vote on the question of raising money or incurring any town liability, it should have been by ballot, and in either case it furnished no legal basis for the action of the supervisors. In that case there was no application to the board of supervisors by the supervisor with the consent of the commissioner of highways and other officers of the town, as required by statute. Here all the provisions of the statute authorizing a supervisor to apply seem to have been complied with, unless the absence of one of the four justices of the peace of that town renders the application defective, which we cannot hold for the purpose of reversing this order.

The statute does not in terms require the consent of all of the justices of the town. The language is: The justices of the peace of said town.” We are therefore inclined to the opinion that the act of the board of supervisors is in ho respect so defective, technically, as to render it invalid. Whether Morris or Felter is legally entitled to the office of justice of the peace, it seems that Morris is such justice de facto, and that Felter, although he believes himself to have been duly elected, has not received any certificate, and has taken no proceedings to enforce his claim to the office.

We see no reason therefore to doubt the validity of the contract made by the supervisor under the direction of the commissioners appointed under the act of May 15, 1891, unless the whole proceedings are void for the alleged conspiracy to divert the public money directed to be raised by that bill to the private purpose of draining swamp lands by the reduction of the water in Black Lake.

This purpose is expressly charged in the complaint and substantially supported by the affidavits used before the judge who granted the preliminary injunction. But it is as expressly denied by the answer, verified by all of the defendants or nearly all of them separately, and it is also denied by the affidavits used on the motion at the special term to dissolve the preliminary injunction. The defendants also call attention to the seventeenth finding of fact by Justice Tappan in the case designated as the second Barker case, in which he finds that: “ Neither of the defendants' has conspired with any of their co-defendants or any other person to defraud the town of Oswegatchie of any money, and that each and every of the allegations in the complaint in that regard are unproved.”

While this finding may not in any way conclude the parties in this action, we think it may be taken into account by this court as bearing upon the question whether the order appealed from in this case, dissolving the temporary injunction therein, should be reversed.

As the whole equity of the plaintiffs bill of complaint is denied by the answer and met by controverting affidavits on this subject, we see no reason for reversing this order on this branch of the case. But it is urged that all of the acts of the defendants in procuring the passage of the act of May 15th and all acts done under it, were in violation of a judgment or order of this court made in what is termed the second Barker case.

That injunction was granted April 4th, 1890, and restrained the defendants in that action from issuing bonds under and in pursuance of an act, resolution or bill passed on or about February 18, 1890, by the board of supervisors of St. Lawrence county in relation to the building of a bridge across the Oswegatchie river at Eel Weir rapids in said town of Oswegatchie, and the defendants are severally therein enjoined from doing anything “ under or in pursuance of that act, bill or resolution of the board of supervisors of St. Lawrence county.”

I do not understand that it is alleged in the complaint in this action, or claimed from the proof, that the defendants in this action are proceeding under the act of February 18, 1890, but their proceedings as town officers, as a board of supervisors, as commissioners appointed by the board of supervisors, and as contracting parties, appear, so far as their acts are sought to be restrained in this action, to start with the application of the supervisor of the town for an act of the board of supervisors, which application is dated May 2, 1891, and appears to have no relation to the act of the supervisors of February 18, 1890, which has been declared by the decision of this court m Berlin Iron Bridge Co. v. Wagner, supra, to have been invalid.

But it is urged that the commissioner of highways had made a valid contract with the Berlin Iron Bridge Co. for the construction of a bridge at Eel Weir rapids, and that contract should be upheld and the contract under the act of the board of supervisors passed May 15, 1891, should therefore be held invalid.

We are not called upon on this motion to pass upon the ultimate validity of these contracts. It is not perhaps impossible that two valid contracts may have been made by which the other contracting parties, the town or some of its officers, may be bound. But we are not called upon to determine that question here.

We are really only concerned with the question whether the order appealed from should upon-legal grounds be reversed, and .upon the whole we see no ground for its reversal.

Order affirmed, with costs and printing disbursements.

Learned, P. J., concurs.

Landon, J.

(dissenting)—The-contract made by Wagner, commissioner of highways, with the Berlin Iron Bridge Company being valid, practically exhausts the subject, though it may be possible for the board of supervisors to provide for making á second arid wholly unnecessary contract with the King Iron Bridge Company for the same work, as to which I have grave doubts. Be that as it may, the court should do what it can to put a stop to double expenditure for the work. I, therefore, advise upholding this injunction, without prejudice to the plaintiff’s remedy for damages for breach of the contract with him.

Order affirmed, with costs and disbursements.  