In People ex rel. Keene v. Supervisors, etc., (142 N.Y. 271), we expressly held that the power conferred upon the counties of Kings and Queens with respect to this work was in the public interests and for the public benefit.Summary of this case from Markey v. County of Queens
Argued April 9, 1894
Decided April 24, 1894
Roswell W. Keene, in person, for appellant. Francis H. Van Vechten for respondent.
The demurrer to the alternative writ presents the question whether upon the facts alleged a duty rested upon the boards of supervisors of the counties of Kings and Queens to re-build the bridge over Newtown creek, on Maspeth avenue, where a bridge previously existed connecting the avenue in Queens county with the portion of the avenue in the county of Kings within the city of Brooklyn, and whether the remedy by mandamus in this proceeding should be awarded. The alternative writ, after reciting the facts stated in the petition, commands the boards of supervisors of the respective counties to construct a bridge over the creek at Maspeth avenue, specifying the width and other particulars conforming to the description in the act chap. 290 of the Laws of 1891, which authorized and empowered the boards of supervisors of the two counties to build a bridge at the point in question, "or to show cause," etc. The proceeding was commenced after the passage of that act, in reliance doubtless upon its validity. But it is now conceded that the act was in contravention of the constitutional provision (Art. 18, § 3) prohibiting the state legislature from passing local bills providing for building bridges, etc., and authorizing the enactment by the legislature of general laws conferring upon boards of supervisors powers of local legislation. If the only duty resting upon the boards of supervisors of the two counties in respect to the bridge in question was that attempted to be created by this statute, the proceeding must of necessity fail. But if there was an antecedent or subsequent duty imposed by other statutes now in force to re-build the bridge, and that duty is sufficiently set forth in the writ, the writ may go and that duty may be enforced, although the relator may have proceeded upon a mistake as to the validity of the act of 1891, unless upon technical objections to the form of the writ he must be remitted to a new proceeding.
Before considering the question of form we shall consider the primary question whether a duty is imposed by law upon the boards of supervisors of the two counties to re-build the bridge, independently of the act of 1891; that is, a duty disclosed upon the face of the writ, either absolute or conditional, which the defendants have failed to perform. It is averred in the writ that Maspeth avenue was opened as a highway in 1836; that it was the main thoroughfare of travel from the city of New York and Williamsburgh (now Brooklyn) to Queens county; that in the year mentioned a drawbridge was constructed over Newtown creek at Maspeth avenue for public travel; that the said avenue and bridge have continued as a turnpike, plankroad or as a public highway from 1836; that the turnpike and bridge company abandoned the road and bridge many years ago, and that for a period of five consecutive years (after such abandonment) the road and bridge was used as a public highway; that the bridge a number of years ago became out of repair and was taken down or destroyed, and has not been re-built, etc. These and other facts alleged in the writ sufficiently show, on demurrer, that Maspeth avenue was a public highway, and that the bridge constituted a part of the same.
The duty to repair a bridge on a highway which has become out of repair is imposed by statute upon some local authorities. Under the general statutory system of this state the duty is placed on the towns or municipalities in which they are located, and not upon counties, as in England, although many exceptions have been created by special statute. ( Hill v. Supervisors of Livingston County, 12 N.Y. 52.) It appears by the writ that Newtown creek is a navigable stream within the ebb and flow of the tide, and constitutes, at the point in question, the dividing line between Kings and Queens counties. The case, therefore, is brought within section 68 of the County Law of 1892 (Chap. 18). That section (which is substantially a re-enactment of sub. 5, sec. 1 of chap. 482 of the Laws of 1875, as amended by chap. 320 of the Laws of 1880), after declaring that "the board (of supervisors) shall provide for the care, maintenance and repair of any draw or other bridge," etc., and providing how the expenses shall be apportioned and paid, proceeds as follows: "But where such bridge shall span any portion of the navigable tide waters of the state, forming at the point of crossing the boundary line of two counties, such expense shall be a joint and equal charge on the two counties in which the bridge is situated, and the board of supervisors in each of such counties shall apportion such expense among the several towns and cities," etc. The duty imposed by this section upon the board of supervisors of two counties divided by navigable tide water, spanned by a bridge, on a highway crossing the stream, to keep the same in repair, is plainly administrative and mandatory, and not discretionary. It is power conferred in the public interest and for the public benefit, and is imperative within many authorities. (See People v. Supervisors of Otsego County, 51 N.Y. 401; Com. v. New Bedford Bridge, 2 Gray, 339.)
Upon the facts stated in the writ, which on demurrer are to be taken as true, we have the case of a bridge, part of a highway, over tide water which divides the counties, which has become out of repair, and the reparation of which requires that the bridge shall be re-built. The statute casts upon the two boards of supervisors the duty to make the reparation. This duty the two counties understood was imposed upon them, since they united in approving the bill which culminated in the law of 1890, but which is now conceded to be unconstitutional. The writ shows that the supervisors of Kings county have refused to pass any resolution authorizing the construction of a new bridge, and the supervisors of Queens refuse to proceed further than they have already gone. We think the demurrer was not well taken, unless some of the technical objections must prevail. The relator as a citizen of Queens county, owning property on Maspeth avenue, who is injured by the inaction of the supervisors, and who is put to inconvenience by reason of the non-repair of the bridge, is entitled to be a relator in this proceeding. ( In re Baird, 138 N.Y. 95.) The command of the writ is undoubtedly too broad. It is for the boards of supervisors to determine the character of the bridge to be built, so only that it meets the public need. The statute of 1890 being out of the way, it is the office of the writ in this case to put the boards of supervisors in motion. The court cannot control their discretion in determining the particular form and manner in which they shall execute the duty imposed upon them so long as they act in good faith. The strictness which formerly prevailed in mandamus proceedings has been greatly modified by statute and the decisions. The alternative writ is now equivalent to the complaint in an action, and the demurrer and return stand as a demurrer or answer in an ordinary suit. If the substantial right is set out in the writ, the proceeding will not fail because the relator asks for too much or mistakes to some extent the relief to which he is entitled. The court, in awarding the peremptory writ, may mould it according to the just rights of all the parties. (Code of Pro. §§ 2067, 2090; People v. Nostrand, 46 N.Y. 375; People v. R.R. Co., 58 id. 152; People v. Wilson, 119 id. 515.)
The objection that under sec. 7 of chap. 907 of the act of Congress passed Sept. 19, 1890, the boards of supervisors cannot proceed to construct the bridge until the location and plans shall have been approved by the Secretary of War, may excuse them in a proceeding for contempt in case it appears that such consent has been sought in good faith and cannot be procured. We think the existence of this statute does not justify inaction and the matter can be provided for in the peremptory writ, if one shall be issued.
We think the demurrer was not well taken and the order and judgment of the General and Special Terms should, therefore, be reversed, with leave to the defendant to answer on payment of costs.
Order and judgment reversed.