Fitzpatrick v. Flagg

5 Abb. Pr. 213

• Court: New York Court of Common Pleas
• Decided: July 15, 1857
• Status: Published

Opinion

Ingraham, F. J.

The motion made in this ease is for an injunction against the defendants, restraining them from signing and paying a check for $100,000 to the State treasury, for the use of the police commissioners in paying the metropolitan police of the city of New York.

The plaintiff, as a tax-payer, for himself and others, asks for this relief, upon the ground that such payment cannot be made until after the amount to be raised by tax for 1857 for police purposes, shall have been collected and paid into the city treasury.

That no part of the tax for the present year has yet been collected from the tax-payers is conceded; but it appears, by the answer of the comptroller, that he has raised by loan on temporary bonds a sum of money, of which there remains in the treasury $160,000, applicable specially to this purpose; and that such funds, unless used for the pay of the police, must remain in the treasury and be unproductive, while the city is paying interest therefor.

Section 27 of the police act (Laws of 1857, 200, ch. 569) provides for the payment of the moneys to be raised for that purpose, to be paid when collected into the city treasury, and immediately thereafter into the treasury of the State, and to be paid therefrom to the treasurer of the Board of Police.

The meaning of the term “ collected” is to be gathered from section 26, where it is provided that the Board of Supervisors shall raise and collect by tax such sums of money as the Board of Police shall apportion.

There can be but one meaning applied to the term “ collected,” and that is when the tax has been paid by those on whose property the tax has been levied. When so collected it is to be paid over to the State treasury for these purposes. Until such collection is made, no mandamus would lie against the corporation to compel the payment, and until so paid no money could be drawn from the State treasury for the pay of policemen. Section 23 of the act provides for the payment of the men in monthly payments, and the first meeting of the Board of Police was the period at which their power and authority over the police of the city was to commence.

A strict construction of the statute must lead to the result, that although the payment was thus to be made monthly, still no authority was conferred by this act to raise the money by loan for meeting these payments before the tax was collected.

The question then arises, whether this court, in the exercise of the discretion vested in it, should restrain the ofiicers of the city having charge of the public treasury from making such payments out of moneys raised by them in anticipation of such tax. The injury to the plaintiff and other tax-payers is not of that serious character which calls for the exercise of this power. It is not denied but that the payment will be legal when the tax therefor shall have been collected. This will probably be in October next, and the injury and loss to be sustained is the interest on this sum to be advanced up to that period. But even that loss cannot be sustained, as appears by Comptroller Flagg’s answer, because the liability for such interest has already been incurred, and the money will be idle in the treasury if not used for this purpose. The charter authorizes the borrowing of money for public purposes in anticipation of the tax, and a liberal construction of that provision, with those already referred to, would warrant an advance of money under such circumstances to meet the necessary payments of the department, prior to the collection of the tax under section 26.

There are other views of this question which have been pressed upon the court, and some of which are deserving of consideration.

The police act has been sustained by the courts, and is now conceded to be the law of the land, and all laws inconsistent with it are repealed. The former police of the city has been dis- , banded, and is no longer in authority, and a neglect or refusal to pay the metropolitan police might very much weaken its force, and create greater evils to the tax-payers than that now complained of. Such neglect or refusal to pay would also entitle them to interest on their pay after it became due, and would thereby increase instead of diminish the expense.

It appears from the complaint that his honor, the mayor, and the comptroller,—who are the guardians of the public funds, and without whose signatures the payment could not be made,—are willing to make the payment from the treasury, and I am bound to conclude that these officers would not consent to such a course, unless they were satisfied that such an advance could be made without injury to the public interests. From what has already been stated, it is apparent that under any circumstances the injury which the plaintiff seeks to prevent would be small in amount, and not of that serious character which should call for the interposition of this court by injunction. When in addition to these considerations it is remembered that the payment now sought to be enjoined is intended for the payment of the police of the city, under a law which the courts have held to be valid and constitutional—that without that police the city would be unprotected—that the men employed thereon are, many of them, if not all, dependent on their pay for the support of themselves and their families, I cannot but conclude that the evils which would follow from granting the injunction would be much greater than those which are sought to be prevented by invoking the aid of this court; and although there are technical grounds upon which the plaintiff’s motion might be granted, yet I am not satisfied that, to the tax-payers themselves, the evils which would follow from allowing the injunction would not be far greater than could be sustained by the contemplated payment, even if it involved the loss of all the interest thereon.

The court has always to exercise a discretion in granting or refusing the remedy of injunction, and in my judgment that discretion should be so exercised that a writ which, under proper circumstances, is a remedial measure of great value, should not be misused, and instead of being allowed for the protection of the citizen, be turned into an engine of oppression and wrong. It is not for every trifling injury of trivial departure from the provisions of law, that the remedy by injunction should be resorbed to; and where the use of this writ will cause a greater public injury than can in any event follow from the acts sought to be restrained, I have no hesitation in saying that it ought not to be allowed. •

This remedy by injunction has already been extended much further than in my judgment is desirable under the provisions of the Code, and I do not think the public interests will be promoted by extending it to every technical violation of law without regard to the consequences which would flow from its allowance. The Metropolitan Police law has been sustained by the courts; the necessity of paying those employed in this branch of the public service is evident, not only for the sake of those employed and their families, but also for its efficiency; and although from a defect in the provisions of the statute the means of immediate payment have not been provided, still there is no sufficient reason why the process of injunction should be resorted to for the prevention of a payment, which the public officers in whom the authority is vested can see may be made in advance of the collection of the tax without injury to the public interests.

The result to which I have arrived upon the examination of the merits of this motion renders it unnecessary for me to express any opinion upon the question of jurisdiction raised by the defendant’s counsel; I will, however, add, that in my judgment the corporation of the city should have been made a party when the object is to control their agents in the disposition of money solely under the control of that body.

The motion for a continuance of the injunction must be denied, and the temporary injunction be dissolved.