
    James C. Birge, App’lt, v. The Berlin Iron Bridge Co. et al., Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed June 17, 1892.)
    
    1. Towns—Bridges—Power of town to raise money—Laws 1886, chapter 359.
    Chapter 259 of the Laws of 1886 does not authorize a special town meeting to provide for raising by immediate taxation a greater sum than §1,250, and if over $500, the vote must be by ballot.
    3. Same—Laws 1875, chapter 482, as amended byLaws 1885, chapter 451.
    The petition for the call for a special town meeting recited that it was “ pursuant to chapter 259, Laws of 1886.” The call itself was made “by virtue of the statutes of the state of New York in such case made and provided.” Held, that the call was sufficient to authorize the taxpayers to raise the amount, if not more than $1,250, by immediate taxation, or they might-vote at said meeting to apply to the supervisors under chapter 482 of Laws of 1875, as amended, for authority to borrow money for the purpose of erecting or repairing a bridge.
    
      Appeal from judgment of the supreme court, general term, third department, reversing order made at special term denying motion of defendants to set aside and vacate an injunction granted pendente lite.
    
    
      Daniel Magone, for app’lt; Louis Marshall, for resp’ts.
    
      
       Reversing 42 St. Rep,, 52.
    
   Peckham, J.

The special term of the supreme court granted an injunction in this action restraining the defendants from taking any proceedings pursuant to an alleged contract between the defendant Wagner, as sole highway commissioner of the town of Oswegatchie, in St Lawrence county, and the defendant, the Berlin Iron Bridge Company, during the pendency of this action or until the further order of the court.

The defendants appealed to the general term from such order of the special term, and after argument the order was reversed, and in the order it is recited that it is reversed “ on the ground that the plaintiff has not the legal right to maintain this action, and this order is made at this time and in this form for the purpose of allowing an appeal therefrom to the court of appeals.” This action is brought by the plaintiff, as a taxpayer, to enjoin the defendants from further proceeding under an alleged contract between them for the erection of a new bridge within the town above mentioned, on the ground that the contract is wholly illegal as beyond the power or authority of the highway commissioner to make, and as having been entered into fraudulently, and as being, therefore, an illegal waste and misapplication of the funds of the town. The injunction was procured upon the verified complaint of the plaintiff and upon sundry affidavits which, as plaintiff claims, prove the truth of the allegations contained in the complaint. The defendants moved at special term upon affidavits and a verified answer to dissolve the injunction, and upon a denial of the motion they appealed to the general term.

The language used by the general term upon the resettlement of its order makes it plain that the order of the special term, in effect continuing the injunction, was not reversed upon any question of fact. That court has, by the form of its order, held that the case, as presented by the plaintiff, assuming its entire truth, is one upon which he is not entitled to final relief, or, in other words, the plaintiff, upon the facts as he claims them, proves no cause of action against the defendants. In such case a question of law is raised which we can review. Anderson v. Anderson, 112 N. Y., 104; 20 St. Rep., 344.

It is unlike the question raised in Telephone Co. v. Railroad Co.. 121 N. Y., 397; 31 St. Rep., 524, where, under the circumstances therein appearing, wc held the injunction may have been granted under the discretionary power of the court below, and that it did not plainly appear that the plaintiff could not in any event succeed in the action.

In reviewing the order of reversal made by the general term we must take the facts as set forth in the plaintiff’s complaint and accompanying papers, and if they show a good cause of action against the defendants, calling for an injunction, we must reverse the order appealed from and leave the question of fact, if there be any, to be settled by the court upon the trial of 'the action.

The material question lying at the threshold of this investigation relates to the power of the highway commissioner upon the facts set forth in t.he case to enter into any contract with the bridge company. If, upon any view of the facts, he had in this case no power to contract, the order of the general term should be reversed.

A commissioner of highways, by the Revised Statutes, had power to obtain by assessment by the board of supervisors upon his town, for the purpose of improving the roads and bridges of the town, a sum not to exceed $250 in each year. 1 Rev. St., 502, § 4. 1

Then, by chapter 274 of the Laws of 1832, the highway commissioners could apply in open town meeting for a vote authprizing such additional sum as the electors might deem necessary, not exceeding $250.

By § 1 of chap. 615 of the Laws of 1857, a sum of $750 in addition to all other sums then allowed by law was permitted to be raised by a vote of the electors in open town meeting for the improvement of the roads and bridges.

By these acts a sum not to exceed $1,250 might be raised in the taxes for the current year for improving and repairing roads and bridges. The legislature in 1879, by chap. 67, amended the law, chap. 377 of the Laws of 1878, and provided that all moneys raised and collected upon the. taxable property of any town in the state for highway and bridge purposes should be paid over by town collectors to the commissioners of highways. This act had reference by its terms to the moneys that were raised and collected by taxation upon the taxable property of the town, and having been raised and coming into the hands of the town collector, the moneys were to be paid over by him to the highway commissioners. The act had no reference to moneys that might be borrowed under the authority of the supervisors by virtue of other statutes, for such moneys would not come into the hands of the town tax collectors, nor would such funds be regarded as having been immediately raised or collected upon or from the taxable property of the town, although such property would in the end have to bear the burden of paying the moneys borrowed under and by virtue of other statutes providing for such borrowing. The moneys that might be raised for bridge purposes under the above cited three statutes, up to the amount of $1,250, it may be asserted would undoubtedly go to the commissioners of highways. • They were moneys which (all but the first $250) were to be raised upon application of the commissioner, and by a vote at open town meeting, and it was undoubtedly necessary that such moneys when voted to be raised should be assessed upon the taxable property of the town and raised by tax in that year.

The open town meeting spoken of in the statutes has been regarded as the regular town meeting provided for by law. For many years this was the manner, and the only manner, in which moneys for bridge purposes could be raised by immediate taxation, and any sum beyond the total of the three acts already mentioned could only be legally raised by special legislative authority.

In 1869 and again in 1875, acts were passed granting further powers of local legislation to boards of supervisors ch. 855, of the Laws of 1869, and ch. 482 of the Laws of 1875. The latter act has been amended several times. These acts provide among other things for permitting boards of supervisors to authorize towns to borrow money to erect and repair bridges, under regulations and proceedings which are therein specially pointed out. Up to the act of 1869, I believe there was no general statute which permitted a town to borrow money for such purpose.

These statutes of course had nothing to do with the general law relating to the raising money by taxation by vote at open town meeting for the improvement of the roads and bridges within the town. That power and the manner of its exercise remained as it had been, and, as I have said, it was limited in its exercise to a total sum of $1,250.

The Revised Statutes in providing for special town meetings had granted power to such meetings to transact certain business specified in the section. 1 R. S., 341, § 7. And no special town meeting had any power to act on any subject other than such as was specified in the section. Id. It had no power under that section to vote to raise any of the moneys for roads and bridges provided for in the three acts already referred to. Those moneys were to be raised at open town meetings or not at all. In 1886, however, by chap. 259, the section of the Revised Statutes just cited was amended and special town 'meetings were granted power among other things, “to vote on the question of raising and appropriating moneys for the construction and maintenance of any bridge or bridges which said town may be authorized by law to erect or maintain.”

I think it would be dealing very liberally with this language to hold that the whole subject of the amount to "be raised by immediate taxation upon the town taxpayers was by it reposed in a special town meeting called as provided for by statute upon a notice of but five days. Chap. 82, of the Laws of 1885. Up to the passage of this act the subject had been carefully guarded, and not more than $1,250 could be raised by immediate taxation for the improvement of roads or bridges, and all but $250 of even that sum had to be raised by special application of the commissioners at open town meeting and by a vote of a majority of the electors at such meeting. At the general town meetings experience has shown there is a general attendance of the taxpayers and all subjects of interest to them are quite certain to receive the consideration of the great majority of them. And yet up to 1886 it had not been thought expedient to permit even at such a meeting the raising of more than $1,250 by assessment and taxation in that year for the purpose of improving roads or bridges. By permitting a special town meeting, upon five days notice, “ to vote on the question of raising and appropriating moneys for the construction and maintenance of any bridge or bridges,” we do not think the limitation in amount already existing upon ■ the power to raise money at open town meeting was abolished. The purpose of the act of 1886, so far as the question of the raising of the moneys by immediate tax is concerned, is fully answered, as we think, by the grant of the power to vote at a special town meeting those sums to be raised by immediate taxation which before the passage of that act could only have been authorized at an open ” or regular town meeting. These sums when raised must go into the hands of the highway commissioner.

Our attention is called to the case of Wells v. Town of Salina, 119 N. Y, 280; 29 St. Rep., 732, as deciding something contrary to this proposition. We think there is no inconsistency between the two cases. The question here is whether the legislature has granted power to a special town meeting by this language to vote any amount of money to be raised by immediate taxation' which may be agreed upon by a majority of those who may be in attendance and who may be but a small minority of the taxpayers, and when they would have no such power if assembled and voting at “ open ” town meeting. The question in the Town of Salina case was whether it had power to borrow money for the purpose of paying all the prospective expenses of a lawsuit which the town voted to take charge of and prosecute to a final determination. It was held it had no such power; that none such had been expressly granted it by law and none was to be implied from the legislation in regard to the power of towns. What was said as to the policy of the law that town charges should be met by annual recurring taxation must be viewed in the light of the facts of that case. There was, as we decided, no law permitting the borrowing, of money for such a purpose, and there was no limitation upon the amount of the expenditure to be made in the prosecution of the case. It was a leap in the dark, and the payment was postponed indefinitely. In such case it can be very clearly seen that a policy of borrowing money would be a most pernicious one, not to be implied from doubtful language and not to be exercised without a plain grant of power expressed or necessarily implied.

The case of Huggans v. Riley, 125 N. Y., 88; 34 St. Rep., 458, is also referred to by the counsel for the defendants. No question as to the power of a special town meeting to raise money by immediate taxation for road or bridge purposes was therein involved, nor was it spoken of in the opinion of the learned judge, nor decided by the court. The point there arose upon a disagreement between the board of supervisors and the town authorities as to the location of the bridge, during which the highway commissioner located the bridge, and was proceeding to build it when restrained by the action of the plaintiff, who sued as a taxpayer to restrain him from going on. The money had been voted, and the supervisors had authorized the town supervisor to borrow money for the purpose of building the bridge, but they refused to ratify the location as fixed by the town board. We held that upon these facts the highway commissioner had the right to go on and. build the bridge, which he would have done in case the supervisors and the town authorities had agreed upon the location. It was not a question as to which party was to build, the highway commissioner or the board of supervisors, but simply whether the power to build waited and was dependent upon the ratification by the board of supervisors of the location of the bridge as agreed upon by the town authorities. We held under the facts of that case that the act of the commissioner after the supervisors had authorized the borrowing of the money was valid. There is nothing in the decision of that case at war with the principles under discussion in the case at bar.

In this case we are of opinion that the act of 1886, above cited, does not authorize a special town meeting to provide for raising by immediate taxation a greater sum than $1,250, and if over $500, the vote must be by ballot. Chap. 122 of the Laws of 1883, as amended by chap. 82 of the Laws of 1885. There were acts, as I have already stated, by which application might be made to the board of supervisors for authority to borrow money to build or repair bridges. Laws of 1869 and 1875, supra, and chap. 451 of the Laws of 1885.

Section 1 of the last above cited act amends subdivision 6 of chapter 482 of the Laws of 1875, which conferred upon boards of supervisors further powers of local legislation, and such subdivision empowered the board to authorize any town liable to taxation for the erection, etc., of any bridge, to erect and repair the same, and to borrow the money therefor in the manner provided in subdivision 29 of that section. The subdivision contained this further provision: “But no authority shall be exercised under this subdivision, except upon the application of a town liable to be taxed for such purpose, to be made by vote of a majority of the electors thereof voting at a regular town meeting, or at a special town meeting called for the purpose,” etc.

It is said this town meeting in question was not called for the purpose, but was in terms called pursuant to the act of 1886, supra, and hence the vote of the town meeting, even if as claimed by the plaintiff, gave no authority for any application to the supervisors under the act of 1875.

It is true the petition for the call for the special town meeting recited that it was “ pursuant to chapter 259 of the Laws of 1886.” The call itself was made “ by virtue of the statutes of the state of New York in such case made and provided,” and the act of 1886 provides for calling a special meeting for “ voting on the question of raising and appropriating moneys,” etc.

Upon these facts does it follow that the town meeting thus specially called could not act under the law of 1875, as amended by the act of 1885, already cited ? I think not.

The act of 1885 (Ch. 451) provides for authorizing a town liable to taxation for the erection of a bridge to erect it, and for that purpose to borrow money. The condition is that the supervisors shall not grant any such authority except upon application of a town liable to be taxed for such purpose, to be made by vote of a majority of the electors thereof voting at a regular town meeting or at a special one called for the purpose. For what purpose ? I think it means a special town meeting called for the purpose of considering the question of the erection, care, repair or maintenance of a bridge. That is the important purpose which the statute meant the special town meeting should be called for.

It was to be one which had convened for the purpose of taking that question into consideration, and when thus convened, if it decided to ask the authority of the supervisors to borrow money and pay it in accordance with subdivision 29 of the act of 1885, it could do so. It is not called for by the language and there is no real benefit to be achieved in holding that the town meeting must not only be called for the purpose of deciding upon the question of erecting or repairing the bridge, but also for the further purpose of borrowing the money. The authority is not to be exercised by the supervisors “except upon application of a town liable to be taxed for such purpose.” The expression “ liable to be taxed for such purpose ” means a liability to be taxed for the purpose of erecting, repairing or maintaining a bridge and not a liability to be subsequently taxed to pay the money borrowed to erect, etc., the bridge. If the purpose for which the town is liable to be taxed means the erection, repair, etc., of the bridge, then it would seem to follow that “ the purpose ” of the call of the special town meeting must be of the same nature, that is, the purpose of erecting, repairing or maintaining the bridge. In this view the call is sufficient which indicates such a purpose, although the petition for it may state it is pursuant to the provisions of the act of 1886. Having come together under the authority of that act to vote upon the question of raising and appropriating moneys for the construction and maintenance of bridges, if the sum be not more than $1,250, the taxpayers may conclude to raise it all (if none have been already raised) by resort to immediate taxation. In coming together under the provisions of the act of 1886, at a special meeting, the taxpayers have, in substance, come together under a call for the purpose of considering the question of the erection, etc., of the bridge. If they do not determine to raise the sum not exceeding the limitation of $1,250 by resort to immediate taxation, they may determine to ask the authority of the supervisors to borrow the money. So long as the special meeting was called for the purpose of considering the question of the erection, etc., of the bridge, or, what is the same thing, of considering the question of raising and appropriating the moneys for the construction and maintenance of the bridge, we think it had power to apply under the act of 1875, as amended, for authority to borrow money.

It is urged, however, that we have decided in the Town of Salina case, sup?'a, that the provision for “ raising money ” in a statute means raising it by taxation at once, and not by the means of borrowing the same to be repaid at some future time. That is true in the limited sense in which it was applied in the Salina case. We were asked in that case to imply a power to borrow money from the grant of power to raise it. Considering the purpose of the grant and its terms, and looking at the context we became convinced that it was never the legislative intent that towns should have the power to borrow money for the particular purpose for which they were given power to raise it in that case. We thought the expression used in the statute plainly meant to give power to raise money by current taxation only and not by borrowing. Several other statutes were cited of a similar character, which as we thought indicated the same intention, viz : a power to raise money by taxation, but not by borrowing. Here is a case, however, where the legislature has provided by a general statute a means, by pursuing which a town can borrow money for the purpose of erecting, etc., a bridge within its boundaries. And the question now is whether a town which has the power to borrow money upon pursuing the plan pointed out by the statute, shall be precluded from doing so because, in the call for the town meeting which was to vote on the question, it was stated that it was called pursuant to the statutes of the state for the purpose of raising and appropriating the necessary money to maintain the bridge, etc.

If it were sought to obtain the power to borrow money from the use of the expressions in the statute giving power to vote on the question of raising and appropriating money for building the bridge, the case of The Town of Salina, supra, would be a good authority against any such implication. Where the power to borrow money exists by virtue of a statute specially granting it on certain conditions, we think the expression stating that the meeting is called to vote upon the question of raising and appropriating the money is a sufficient compliance with the act of 1885, which imposes a condition that the special town meeting shall be called for the purpose of considering the question of the erection, etc., of the bridge, as already stated.

If the plaintiff’s allegations as to the facts are borne out by the proof upon the trial, there would seem to be no doubt of the fact that the written resolution offered by Mr. Magone, requesting the supervisors to authorize the town to borrow money, was voted upon by ballot, and adopted at the special town meeting. The defendants at any rate had no power to enter into the contract which they have attempted to make. Arriving at this conclusion it follows that the order of the general term should be reversed.

Upon the other allegations of the complaint, and those contained in the moving papers, and assuming their truth, we are by no means clear-that a fraudulent conspiracy was not made out between these defendants. The fact that a better bridge has been contracted for, for $8,600 less money than the total expenditure called for by defendant’s contract of $9,200, is a most significant one.

Another is that the only resolution voted for at the town meeting was one providing for the borrowing of the money by authority of the supervisors and its expenditure by a commission named in the resolution. Notwithstanding such resolution and soon after its adoption at the special town meeting, the parties defendants make this contract for the construction of the bridge for $9,200; but the highway commissioner refuses to produce it or to state its contents when inquired of by reputable citizens, unless they procure the consent of the bridge company. He continues such refusal up to the time when criminal proceedings were instituted , against him.

The contract also provides for the payment of one-half of the contract price for the bridge when a very small amount of work has been done and less than a thousand dollars worth of material has been furnished.

The submission of a false statement of the facts to the supreme court for its adjudication is another important fact. There are others which I do not stop to mention. Many and perhaps all of these allegations are met by a full denial on the part of the defendants, and hence it would become a subject for investigation by a trial court if it became necessary.

We are not to be regarded as holding that no cause of action for a fraud was stated or proved in the complaint and accompanying papers, assuming the truth of their allegations.

We express no opinion as to their truth or falsity.

The facts as submitted to the supreme court in the former litigation are certainly very different from those set forth in the moving papers here.

Our conclusion is that the order of the general term must be reversed, and the special term order affirmed, with costs in all courts.

All concur, except Maynard, J., not sitting.  