Argued December 17, 1886
Decided January 18, 1887
John D. Pray for appellant.
Wm. Sullivan for respondents.
The constitutional question raised in this case was decided against the views of appellant in the Matter of Church ( 92 N.Y. 1). It is now suggested that a difficulty exists, not then considered, in the alleged fact that the act of 1875 (chap. 482), with its amendments, does not authorize the supervisors to issue bonds in order to obtain money with which to pay awards to land owners and, inferentially at least, forbids such issue. We did not, in the case cited, discuss that question but practically decided it when we held that the public purse stood behind the awards and guaranteed their payment. The statute, as amended (Laws of 1881), gives authority to the supervisors, as a local legislature, to lay out and construct certain streets and avenues and to provide, by limited or general assessments, for the payment of damages awarded for property taken. Under this authority the supervisors acted. They provided first for an assessment district of property benefited, upon which, as an area of taxation, the cost of the improvement was imposed, but, recognizing its possible insufficiency, further provided that any deficiency of principal or interest upon the debt incurred by the awards should be paid by general taxation. It is the mode of reaching, rather than the substance of this result, which is the subject of criticism. The resolution authorizes the issue of short term bonds, none running longer than six years and some only two, upon which to borrow money for the payment of the awards. The proceeds of the loan were to be at once devoted to such payment and the town to be reimbursed by the local assessments, and in case of their deficiency by general taxation. To effect this result the resolution provides "that any deficiency required to meet the principal and interest on said bonds shall be made a tax on the real and personal estate of the town." It is now argued that a deficiency upon the bonds is all that is provided for, and payment is due to the land owner from their proceeds alone, and if there can be no bonds there can be no payment. But the local legislature authorized explicitly their issue, and if, in doing so, it acted within the scope of the statute, committing to it upon some subjects and within some limits the powers and duties of a legislature, that is an end of the question. Of course it is not doubted that the State may confer upon a municipal corporation the power to borrow money, if otherwise it did not exist. What it could itself do in laying out, opening and grading streets and avenues, like the one in question, it could authorize the local legislature to do with all its own discretion. It did confer such authority in broad and general terms by the act of 1875 and its amendments. It transferred to the supervisors its own power and authority as to a particular class of streets and avenues to fix a plan for their grades, to lay out, open, grade, construct, close and alter any of them, to "provide" for the estimate and award of damages, for an assessment on property benefited, for the levying, collection and payment of damages, and all other charges and expenses necessary to be incurred. Control over the whole subject, legislative discretion as to all incidents and details and the mode of accomplishing the purpose, was thus in the broadest and most general way conferred upon the supervisors. Providing for assessments for benefit and general taxation of the town for any possible deficiency, they could, as they did, and as was right and reasonable in the interest of the land owner, anticipate the slow collection of such proceeds by borrowing the money needed for payment beyond the collections of the first thirty days, to pay the awards, giving in exchange the obligations of the town running only for the comparatively brief period of reimbursement. Reference is, however, made to subdivision twenty-nine of the act of 1875, which gives authority for the issue of long term bonds not exceeding twenty years for the purpose of building or repairing bridges, purchasing turnpike roads or toll bridges, buying land for a town hall and constructing the same, and enlarging cemeteries, and it is argued that this grant of authority excludes an intention to bestow it in other cases. These are special, and to some extent unusual and extraordinary expenditures, as to which there might possibly have arisen doubt whether the creation of a long term bonded debt was a necessary incident of a general grant of power. It may not have been needed, but if it was, it seems to have been rather for the purpose of limiting and defining the power of borrowing money which might have flowed from the general grant of authority than of supplying its absence, and cannot by inference forbid the borrowing of money for short periods in anticipation of a tax ordered to be laid for reimbursement. ( Ketchum v. City of Buffalo, 14 N.Y. 356, 376.) Practically the town is authorized to incur the debt to the land owners. It is made responsible for its payment and authorized to provide the necessary means, and through the provision for a general tax, upon failure of the special assessments, becomes as to the land owner the real debtor. We think the grant of legislative power was not exceeded by the act of the supervisors in providing, through a temporary loan, for the prompt and immediate payment of the awards pending the ultimate reimbursement by taxation.
No other question is raised in the case and the judgment should be affirmed, with costs.