Jamaica Savings Bank v. City of New York

61 A.D. 464, 70 N.Y.S. 967

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 15, 1901
• Status: Published

Opinions

Hirschberg, J.:

On March 18, 1895, the plaintiff loaned the town of Jamaica, in Queens county, $20,000 and received twenty bonds executed by the proper officers of the town, each for the sum of $1,000. The town debt, if lawful, was assumed by the defendant in accordance with the provisions of the Greater New York charter (Laws of 1897, chap. 378). Interest on the bonds amounting to the sum of $1,200 remains due and unpaid, and this action is brought to recover it. The defense, as presented on this appeal, is limited to the assertion that the town had no authority to borrow the money on its obligations.

The money was borrowed for the purpose of paying for lands adjacent to the site of the Jamaica town hall in the village of Jamaica. The acquisition of the original land and the building of the town hall were in pursuance of chapter 147 of the Laws of 1864, ■entitled “ An act to provide for the erection of a town hall in the town of Jamaica, in the county of Queens.” By section 1 of that act the supervisor and four other individuals, named as commissioners to act in conjunction with him, were authorized to borrow on the faith and credit of the town a sum not exceeding $30,000. By section 2 the supervisor and commissioners were directed to purchase a site in the village of Jamaica for a town hall, and to erect such ball with the money so borrowed. Section 3 provided that “ The board of town officers of the town of Jamaica shall appoint three trustees to have the care and custody of said town hall so erected; but the title to the same and to the site thereof shall be deemed to be vested in the said town of Jamaica. The said trustees may rent the same when not required for town purposes, and may collect and receive the rent therefor. The rents so received .by them shall be applied by them to defray the expense of keeping said hall in repair and taking care of the same. Any excess of said rents over and above said expenses shall be paid by said trustees to the overseers of the poor of said town for the support of the poor.”

By chapter 146 of the Laws of 1894, section 3 was amended so as to read as follows : “ The town board of the town of Jamaica shall have the care and custody of. the said town hall, and all such adjacent lands as may be acquired by the said town board for public uses and purposes, and shall establish such rules and regulations for the government of the same as they deem proper. The title to said! town hall and the site thereof, and of such adjacent lands, shall be deemed to be vested in the said town of Jamaica,' and thé said town board is hereby expressly vested with power to make, or cause to be made, all repairs and alterations in said town hall, and to-acquire, take and hold, in the name of the town and for the benefit, of the town, by purchase or condemnation, such adjacent lands for public uses and purposes ás the said board may deem necessary or proper, and the expense thereof, shall be deemed a town charge, and shall be levied and collected the same as other town charges.”

The plaintiffs bonds were issued to borrow money for the acquisition of adjacent lands, pursuant to section 3 as thus amended, and the issue of the bonds was authorized by an act duly passed by the board of supervisors of Queens county March 7, 18'95. It is serióusly contended, however, by the defendant, that, inasmuch as. legislative authority to borrow money upon the obligations of the town Was conferred by the act of 1864 in respect to the acquisition. Of the original site, and no such authority is conferred with respect to the purchase of adjacent lands under the amendment of 1894, the legislative intent was that the price of the adjacent lands could not be borrowed by bonding, but must be levied and collected the same as other town charges in the tax levy of the year during which the adjacent lands were purchased or acquired by condemnation.

•i I cannot take this narrow view. Between the passage of the act of 1864 and the amendment of 1894 the Legislature, by chapter-482 of the Laws of 1875, had conferred upon the boards of supervisors in the several counties of the State further powers of local legislation,, which included by the terms of subdivisions 20 and 29 of section 1 the power to authorize any town to issue its bonds and borrow money thereon for the acquisition of a site and the erection of' a town hall, upon the vote of a majority of the taxpaying electors. During the Same period the Legislature further enlarged the powers of the boards-of supervisors by subdivision 6 of section 12 of the County Law (Laws of 1892, chap. 686), by empowering them generally to “ authorize a town in their county to borrow money for town uses and purposes on its credit, and issue' its obligations therefor, when, and ini the manner authorized by law.” That the acquisition of the adjacent,lands in this case was a lawful town use and purpose,.and- that the act of 1894 was constitutional, was held by Mr. Justice Willard Bartlett on the condemnation proceedings in-a very satisfactory opinion delivered at the Special Term, and embraced in the present record. It would, therefore, seem that ample authority existed for the issue of the bonds in question unless the board of supervisors bad no authority to permit such issue by virtue of the sanction contained in the law of 1892, or because of some qualification of the power to be found in the act authorizing the acquisition of the town site and Hall and the amendment thereto.-

It appears from the brief of the learned counsel for the appellant that the attitude of resistance to the payment of these bonds has been assumed by the defendant “ on the report of three eminent-lawyers appointed by it to examine into the validity of all bonds outstanding against the various municipalities which were consolidated into it by the £Greater New York Charter.’” The report is printed as an appendix to the brief. The point upon which the “ three eminent lawyers ” condemned the bonds is in substance that the provision of the County Law {supra) by which boards of supervisors are authorized to permit towns to borrow money and issue obligations for town uses and purposes, is intended to apply only to such cases as are provided for by section 69 of the County Law, viz., for expenditures for highways and bridges. Yo authority is cited in support of this contention, and fio support for it can be found in the law. The general provision by which the power is conferred upon the boards of supervisors in subdivision 6 of section 12 {supra) relates in terms to the “ general powers ” of the boards of supervisors, and may be regarded as a broad and comprehensive re-enactment of subdivision 29 of section 1 of chapter 482 of the Laws of 1875, which by distinct reference to other subdivisions of section 1 of the act, included bonding for money to be used in acquiring town halls as.well as for bridges and highways. (See subds. 6, 20 of § 1 of that act.) The language employed is broad enough to cover all “ town, uses and purposes.” Section 69 of the County Law, however, is a part of article 4, which relates only to the “ duties of boards of supervisors relating to highways and bridges.” It expressly empowers boards of supeiwisors to authorize towns to issue bonds for the construction and improvement of roads and bridges. There is no rule of statutory construction which makes a part include the whole. If section 69 contains the entire scope of the power of supervisors on the subject, the provision contained in section 12 is both unnecessary and meaningless. The theory of the “ three eminent lawyers ” must, therefore, be rejected.'.

The learned counsel for the appellant insists, however, that the absence of express legislative authority to borrow the money by bonding for the adjacent lands is significant of an intention to prohibit it ; that the provision to the effect that the expense shall be levied and collected the same as other town charges is an indication that the money must be raised by a single tax levy; and that the provision of the County Law by which the board of supervisors is only permitted to authorize bonding “ when, and in the manner, authorized by law,” is an express limitation of such authority to the cases where it is conferred by some other legislative act.

There is no special significance to be attached to the absence of a provision for bonding in the amendatory act in view of the fact that full power had been conferred upon the supervisors to authorize the raising of the money by the issue of bonds intermediate the date of the original act and of the amendment. The provision that the expense shall be deemed a town charge, to be levied and collected the same as other town charges, relates equally to the “ repairs and alterations ” to the town hall as to the cost of acquiring adjacent lands. There is nothing in this provision which necessarily negatives the general power delegated to the board of supervisors to legalize a bond issue, for the bonds must be met and redeemed, both principal and interest, by annual tax levies the same as other town charges. Indeed section 180 of the Town Law (Laws of 1890, chap. 569) provides that “ every sum directed by law to be raised for any town purpose shall be deemed one of the town charges ;■ and that “ the moneys necessary to defray such charges.shall be levied on the taxable property in such town by the board of supervisors.” The restrictions contained in the general power, conferred upon boards of supervisors to authorize a town to borrow' money' and issue its obligations therefor “ when, arid in-'the manner, authorized by law,” cannot be designed as a limitation .of the "power to the cases where it is specially conferred upon such town by some other general or local statute, for in such case it would be entirely unnecessary. If the board of supervisors could only authorize a town to borrow' money when the Legislature had already done so, the power of the local legislature would exist only in name. The limitation “ when, and in the manner, authorized by law ” may more reasonably be assumed to relate to any special restrictions which may be contained in the local act, to the limitation of credit and other particulars as set forth in sections 13 and 14 of the County Law, and to the general provisions relating to municipal bonds embraced in the General Municipal Law (Laws of 1892, chap. 685) which provides; in great detail for the form, amount, duration and manner of the creation of such obligations, and includes by the express terms of section 1 both a town and the town board of a town within the scope of its provisions.

The purpose of the Legislature in the Jamaica acts, when viewed in the light of the general laws herein referred to, was to include both the original site and building and the subsequently acquired adjacent lands as the proper subject of a reasonable and lawful town credit, the first by a loan directly authorized and the latter within the purview of the power of the supervisors. Thirty thousand dollars only was allowed for the original acquisition, while no limitation was placed upon the sum to be expended for the adjacent lands. It appears that the sum of forty thousand dollars was actually expended in procuring the adjacent lands, and no good reason appears for the saddling of that large outlay upon the taxpayers in a single year. Such a purpose would require plain expression to give it force and validity, and the mere statement that the repayment of the money was to be a town charge, to be levied and collected as other town charges, is not in itself -sufficient to repeal a general law which remits to the local legislature the determination of the question whether its payment should be distributed over a reasonable period of years in the manner generally provided by law for the creation and the funding of municipal indebtedness.

The judgment should be affirmed.

All concurred, except Goodrich, P. J., who read for reversal.