Earl, J.
By the act, chapter 399 of the Laws of 1867, certain persons were incorporated as “ The How York Bridge Company,” for the purpose of constructing and maintaining a permanent bridge over the East river, between the cities of Hew York and Brooklyn. The capital stock of the company was fixed at $5,000,000, and full authority was conferred upon it to construct the bridge, and to acquire the necessary lands for that purpose. The bridge wag required to be not less than one hundred and thirty feet above high
tide at the middle of the river, and was to be so constructed as not to obstruct the free and common navigation of the river. The two cities were authorized to subscribe to the capital stock of the company, such amount as two-thirds of their common councils respectively should determine; and they were also authorized to take the bridge, and acquire all the property therein, upon terms specified in section seven of the act.
Under that act the city of New York subscribed to the stock of the company, $1,500,000, and the city of Brooklyn subscribed $3,000,000, which subscriptions were paid.
On the 20th day of February, 1869, an act (chapter 26 of that year) was passed, amending the prior act. It provided that the two cities should be represented in the board of directors of the company, by certain of their officers, and that the company should proceed without delay to construct the briden.
On the 3d day of March in the same year, an act of’ Congress was passed, entitled “An act to establish a bridge across the East river, between the cities of Brooklyn and New York, in the State of New York, a post road.” It declared the bridge to be constructed under the first act above mentioned, when completed in accordance with that act, to be a lawful structure and post road for the conveyance of the mail of the United States, provided that it should be so constructed as not to obstruct, impair, or injuriously modify the navigation of the river. The bridge company was required to submit to the secretary of war, a plan of the bridge, together with other information, so that he might determine whether the bridge when built would conform to the prescribed conditions as to obstructing, impairing, or injuriously modifying the navigation of the river; and the secretary of war was authorized and directed upon receiving such plan, and other information, and upon being satisfied that a bridge built on such plan would conform to the prescribed conditions, to notify the company that he approved the same, and upon receiving such notification, the
company was authorized to proceed to the erection of the bridge, conforming strictly to the approved plan.
The East river is a public navigable water, and to bridge it required the concurrent authority of the State of New York, and of the United States; of the former, by reason of its rights in the lands on the shore, and under the water, and of its qualified sovereignty over the water ; and of the latter, by reason of the exclusive power of Congress to regulate commerce, and to determine, in its regulation thereof, to what extent navigation upon the water may be obstructed or interfered with.
That Congress may authorize a bridge over a public navigable water which will to some extent obstruct or interfere with navigation, cannot be disputed. (
Wheeling Bridge Case,
13 How. [U. S.], 519; 18 id., 421;
Miller
v.
The
Mayor, 13 Blatch., 469.) In 18 How. it is said : “ The power oí Congress to regulate commerce, includes the regulation of intercourse and navigation, and consequently the power to determine what shall or shall not be deemed in judgment of law, an obstruction of navigation.” In 13 Blatchford, a case involving this bridge, Judge Johnson after reviewing the authorities said: “It results from the eases "considered, that the authority of Congress is paramount, in the regulation of commerce, under the constitution ; and that its determination in respect to interference with navigation, by obstructions thereto, is conclu. sive. What it authorizes may be justified upon its authority. What it forbids is necessarily unlawful. Nor is it to be forgotten that this power oí Congress is at all times capable of exercise. If it should turn out that the judgment of Congress has been mistaken, it can by law require the bridge to be altered, or removed, and can adapt its regulation of commerce to its view of the public interests.”
Congress in the exercise of its power to regulate commerce and navigation, could itself approve the plan of the bridge, or it could prescribe a mode in which it could he done. Hence it was competent for it to devolve upon the secretary
of war, the power to approve or prescribe the plan for the construction of the bridge. By so doing it did not abdicate its power, but provided an agency, as it does in most other cases, for the complete and practical exercise of its power; and it still retained control of the whole subject by the power expressly reserved, at any time to alter, amend, or repeal the act.
In compliance with the requirement of the act, the bridge company submitted a plan of the bridge to the secretary of Avar, Avhich was approved by him subject to certain conditions. One of the conditions was that the main span of the bridge should not be less than 135 feet in the clear, above high water; and another was “that no guys or stays shall ever be attached to the main span of the bridge, Avhich shall hang beloAV the bottom chords thereof.” And on the 21st day of June, 1869, he notified the bridge company of such approval. The act of Congress did not provide Iioav such notice should be given, and hence the secretary of Avar having himself considered and approved the plan, could convey such notification in person or by mail, or in any other Avay Avhich would be effectual. He did it through one of his subordinates, and it cannot be doubted that that Avas a compliance Avith the act.
Having thus the authority of Congress, and of the State Legislature, the bridge company proceeded with the construction of the bridge, until the year 1874. During that time it Avas under obligation, under the State Iuav to construct the bridge so as not to obstruct ■“ the free and common navigation of the East river; ” and under the act of Congress, to construct it according to the plan approved by the secretary of Avar.
In June 1874, another act Avas passed by the State Legislature, (chap. 601, of that year), entitled An act to amend the act of 1867, “ and to provide for the speedy construction of the said bridge.” Section
one
of the act provided that Avhen the íavo cities should by vote of their common councils respectively, or when either of them should accept
the provisions of the third section of the act, and when the owners of two-thirds of the private stock of the bridge company should accept the provisions of the second section, then and thereafter, the board of directors of the company should consist of twenty members, eight persons to be appointed by the mayor and comptroller of each city, and such mayors and comptrollers. Section
two
provided that whenever any private stockholder of the bridge company should give his assent to that act by an instrument in writing, signed, acknowledged, and recorded as prescribed, the directors to be appointed under the act were authorized to purchase the rights of such stockholder, which rights were to bo determined by the amount paid by such stockholder together with interest, and to jnovide for the payment of such' amount. Section three, declared the bridge to be a public highway for the purpose of rendering the travel, between the two cities, certain and safe at all times, subject nevertheless to such tolls and prudential and police regulations, as the board of directors should from time to time establish; and for the purpose of completing the bridge, the two cities, in addition to the amounts before subscribed by them, were respectively authorized to take and pay for further stock, the city of New York to the extent of $1,000,000, and the city of Brooklyn $2,000,000.
The effect of that act was to leave the bridge company as a corporation still in existence, and the two cities might or might not own all the stock ; and before any subscriptions to the stock were made under that act by the two cities, the constitutional amendments took effect, January 1, 1875, section 11 of article 8 of which provides as follows : “No county, city, town, or village shall hereafter give any money or property, or loan its credit to, or in aid of any individual, association, or corporation, or become directly, or indirectly the owner of stock in, or bonds of any association or corporation, nor shall such county, city, town, or village be allowed to incur any indebtedness, except for county, city, town, or village purposes.”
After this provision became a part of the State constitution, the legislative act of 1874 could not be carried into effect, and to obviate the obstacle thus interposed, another act was passed May 14, 1875, entitled “An act providing that the bridge in the course of construction over the East-river, between the cities of New York and Brooklyn, by the New York Bridge Company, shall be a public work of the cities of New York and Brooklyn, and for the dissolution of said company, and the completion and management of the said bridge, by the said cities.” Section
one
provides that whenever two-thirds of the private stock of the company shall have been retired from the company by purchase, as provided by the act of 1874, the company shall be dissolved, and the debts and liabilities of the same shall be paid by the trustees of the bridge, and the bridge then in course of construction shall be completed and managed as provided in the act on behalf of the two cities, as a consolidated district, for that purpose ; and then the act of 1874 is recited at length. Section
two
provides that within twenty days after the passage of the act, the mayor, comptroller, and president of the board of. aldermen of the city of New York shall appoint eight trustees, and the mayor, comptroller and city auditor of the city of Brooklyn shall also appoint eight for the purpose of managing and constructing the bridge; and the trustees thus appointed, together with the mayors and comptrollers of the two cities shall constitute the board of trustees of the bridge, and shall have full power, control and direction over the plan and construction of the bridge. Section
three
provides that after the dissolution of the company, the bridge shall be a public work to be constructed by the two cities for the accommodation, convenience, and safe travel of the inhabitants of the district, composed of the two cities ; and that the expense of constructing and maintaining the same shall be defrayed by the two cities in the proportion of two-thirds by the city of Brooklyn, and one-third "by the city of New York; and that for such purpose, the trustees shall from time to time as they shall deem necessary, call .upon
the cities for such sums as they shall deem proper in. the proportions mentioned, “ provided, however that the whole .amount to be paid by both cities, shall not exceed eight millions of dollars, and the city of New York shall not be called upon to pay a greater sum than one million dollars in any one year, and the city of Brooklyn not more than two millions in any one year, until the said bridge shall be fully completed, and open for public travel.” By sections
five
and seven, the trustees are given full power and authority to purchase and hold for the two cities all real estate necessary for the bridge, to establish ordinances and laws regulating the use thereof, aud the rates of toll for travel over the same, and to keep and maintain the same in good repair at the expense of the two cities. Section
eleven
provides that if any private stockholder of the. company shall have declined to sell his rights in the company as provided in section two of the act of 1874, the trustees arc authorized to proceed at once to acquire the same for and in behalf of the two cities, in the manner provided in the preceding section for acquiring real estate. Section
twelve
provides that upon the dissolution of the bridge company as provided in the act, the bridge and all its appurtenances, shall vest absolutely in, and belong to the two cities.
After the passage of that act, the trustees mentioned therein, were appointed. All the private stock of the bridge company was purchased as provided in the acts, and the company was dissolved. The trustees proceeded with the construction of the bridge, and received for that purpose from the two cities upwards of $5,000,000, $1,500,000 of which was from the city of New York, and in 1878, they made upon the city of New York two calls of $500,000 each, Avhich are the subject of the present controversy.
The act of 1875, is not, as claimed by the appellant, in conflict with the constitutional provision above recited. It Avas not the purpose or effect of the act, to make the city of New York a stockholder in the bridge company, or to cause it to loan any money, or credit
to such company. It was the purpose of the act to extinguish the company, and vest all its property in the two cities for a public purpose. The cities already OAvned most of the stock and property of the company, and a Avay Avas provided by which they could become the OAvners of the balance of the property. This was to be accomplished by voluntary agreement Avith the private stockholders, and the payment to them of the value of their stock, and in case they could not make such purchase, then such property Avas to be taken by the exercise of the right of eminent domain. The tAvo cities could be authorized to take this bridge for a public purpose, as they could be, to take any other property for the same purpose, and the act provided the mode in which through the trustees they could do it. All the money they paid for stock or upon the debts of the company, Avas simply in furtherance of the purpose to vest the property of the bridge in the two cities, and it Avas not paid to aid the com pany, or to make the cities stockholders therein. The effect avus to be the dissolution of the company, and the transfer of its property. hTor can it be said that the indebtedness authorized to be incurred by the cities for the construction of the bridge, was not for a city purpose. It is impossible to define in a general Avay Avith entire accuracy, what a city purpose is, Avithin the meaning of the constitution. Each, case must largely depend upon its own facts, and the meaning of these words must be evolved by a process of exclusion and inclusion in judicial construction. It Avould not be a city purpose for the city of Hew York to build a railroad from that city to Philadelphia, or to improve the navigation of the Hudson river generally, between that city and Albany, although incidental benefits might Aoav to the city. Such works have never been regarded as Avithin the legitimate scope of municipal government. On the contrary, it would be a city purpose to purchase a supply of water outside of the city, and convey it into the city, and for such a purpose a city debt could be created. So lauds for a park for the health and comfort of the inhabitants of a city could be pur
chased outside of the city limits, and yet conveniently near thereto. Such improvements are for the common and general benefit of all the citizens, and have always been regarded as within the scope of municipal government; and so, too, highways or streets leading into a city or village may be improved, provided the improvements be confined within such limits that they may be regarded as for the common benefit and enjoyment of all the citizens. It cannot therefore, well be held, as claimed by the learned counsel for the appellants, that what is meant by a city purpose, is some work or expenditure within the city limits. There could be no good reason for such a limitation. It could be no worse for a city to incur debt for a city purpose outside of the city limits than for one within such limits, and there is just as much reason for allowing it to be incurred in the one case as in the other. The cities of New York and Brooklyn are intimately connected in many ways, by business, social, and commercial ties. Thousands who do business in the one city, do business in the other. The port of New York includes the whole river at the place where the bridge is to be constructed, and the commerce from all parts of the world, which flows into that port, is discharged on each side of the river. To bridge such a water separating two such cities, must be a city purpose of each city. The bridge will be for the common benefit of all the citizens of both cities, and each citizen will have the same right to use it as every other citizen. It would have been a city purpose if either city had been authorized to build the whole of the bridge, and it is no less so that both are to unite in building it. It has always been the policy of this State for two towns separated by a stream of water, to bridge the stream at joint expense, and the construction of such a bridge is a town purpose of each town. If the Legislature could not authorize these two cities to incur debt for the construction of this bridge, then it could not authorize towns to incur debt for the construction, of bridges over streams dividing them. That it was intended by this clause in the constitution to
prohibit towns from incurring debt for such a purpose, will not, it is believed, be claimed by any one. Suppose this river had been like the Thames in London, or the Seine, in Paris, wholly within the city of New York, it would not be disputed that it would have been a city purpose to bridge it. Can it bo any less so that the river divides what would otherwise be one city ? Suppose this river had been a small stream, like those usually dividing towns which could be crossed only by a bridge, would not the construction of the bridge have been a city purpose, just as its construction would have been a town purpose, if it had been between two towns ? The size of the river, and the magnitude of the work certainly does not strip the bridge of the municipal character which it would otherwise have. The Legislature when legislating in view of this constitutional limitation, must determine in the first instance what is a municipal purpose. Its decision is not however final. When its act is challenged as in conflict with this constitutional limitation, the courts must determine whether debt is authorized to be incurred for a purpose not municipal. But as the dividing, line between what is a municipal purpose, and Avhat is not, is in many cases shadowy and uncertain, great weight should | be given by the courts to the legislative determination, and< its action should not be annulled unless the purpose appears clearly to be one not authorized. As said by Judge Folger in ■
Weismer
v.
Village of Douglas
(64 N. Y., 91), “If the purpose designed by the Legislature lies so near the border line, that it may be doubtful on Avhich side of it it is domiciled, the courts may not set their judgment against that of the laAV makers.”
It is not perceived for Avhat purpose the language as to a consolidated district found in the first section of the act of 1875, Avas inserted. Whatever the purpose was, it has no bearing upon the constitutional questions involved. The bridge Avas to be constructed and managed by the two cities, and when completed Avas to belong to the two cities as tenants in common, each owning-a share proportionate to the
money contributed by it. So far as I can perceive this language could be stricken from the act without in any way impairing any of the essential provisions of the act, or affecting the purpose to be accomplished by it.
Therefore, having nothing to say about the wisdom of the legislation under consideration, I am confident in the conclusion that the construction of this bridge is a city purpose of each city, and that each city can incur debt for the same, and that the act of 1875 is not in conflict with any provision of the constitution.
After the passage of the act of 1875, it was no longer necessary so to construct the bridge as in no degree to obstruct the free and common navigation of the river as required by the act of 1867. At the time of the. passage of the act of 1875, a plan of the bridge, approved under a public act of Congress, had for some years been adopted and acted upon. That plan showed precisely to what extent the bridge would obstruct navigation upon the river, and more than five millions of dollars had been expended upon the bridge. The plan and character of the bridge must be assumed to have been known to the Legislature, and the act of 1875 is an act providing for the completion of the bridge then in course of construction, and the trustees to be appointed under that act are required to complete that bridge. There was theii a legislative approval and sanction of the bridge as then being constructed according to the plan prescribed by the act of Congress, and thereafter the trustees were required only to conform to the plan thus adopted and approved in the construction of the bridge. So long as there is no departure from such plan, the structure could not be assailed as an obstruction to navigation. What is thus sanctioned both by the State and national legislatures, cannot be a nuisance, or otherwise unlawful.
There is no allegation on1 the part of the defendant, that there has been any departure from the approved plan in the construction of the bridge except in one particular, and that is as to the guys or stays. He alleges that
guys or stays have been, and are attached to the main span of the bridge which hung below the bottom chords thereof. There is no allegation that these guys or stays are to become a permanent part of the bridge ; but they are used only, as seems to be conceded, in the construction of the bridge ; and it may well be doubted, whether such temporary appliances are within the condition prescribed by the secretary of war. But if these guys or stays are unauthorized, such a departure from the approved plan would not justify the defendant in withholding the payment of this money. The duty is not" imposed upon him, as comptroller of the city, to see that there is no departure from the plan in the construction of the bridge. Tie is to pay the money when properly called for, and then it is the duty of the trustees of the bridge to properly apply and expend it. If they do not discharge their duty, if they commit a breach of trust, or if they disregard the plan in any material matter, the defendant as one of the trustees can go into the proper courts, State or Federal, and compel an observance of their duties, and conformity to the plan.
The defendant also alleges as a justification of his refusal to pay that the trustees are extravagant in the expenditure of the money intrusted to them, and that the bridge will be useless and unsafe when completed upon the present plan. These matters do not justify the defendant’s refusal. The trustees are appointed pursuant to law to disburse the money. In its disbursement there may be a certain amount of extravagance and wastefulness flowing from misjudgment or folly, for which there is no remedy. But if they be carried to such an extent as to be reckless and criminal, a court of equity, upon proper application to it, may restrain and control the trustees to prevent the waste of the trust funds. The defendant is a member of the board of trustees, and as such has opportunities of knowing how the money is expended. If he cannot as a member of the board prevent its waste, he may take preventive action in the courts. But he cannot refuse to pay the money. The money thus
paid, may not be wasted. It would be quite a novel doctrine that the custodian of public money directed to pay it to persons charged with the duty of expending it, could withhold payment because of the apprehended extravagance of those appointed by law to expend it.
The issue as to whether the bridge will bo useless and unsafe could not be tried in this proceeding. ■ The Legislature has directed the bridge to be completed, and has sanctioned the plan adopted. It authorized the appointment of trustees who were given “full power, control, and direction over the plan and construction of the bridge,” and it made it the duty of the defendant as comptroller to pay the money to them. He cannot withhold payment because in his judgment the bridge will be useless and unsafe or because it will in fact, to a large extent, be so.
But the most serious question is yet to be considered. The defendant claims that the bridge cannot be completed save at a total expenditure of much more than $8,000,000 and that under the act of 1875, the trustees had no power to proceed with the construction of the bridge and to call for any money from the two cities, and that the cities had no power to pay any money to the trustees, unless the bridge could be completed for not more than the sum of $8,000,000. A careful consideration of the whole subject has constrained us to take a different view of that act.
The Legislature has at all times apparently regarded this bridge as of great importance to the two cities, and has appeared to be solicitous about its completion. In the first act, that of 1867, it authorized the two cities to subscribe an unlimited amount to the capital stock of the company, and ultimately to become the absolute owners of the bridge. It conferred upon the company, the sovereign power to take lands for the purposes of the bridge, by the right of eminent domain, thus treating it like corporations organized to construct railroads, in which the public are supposed to have an interest. In the act of 1869, it provided for a representation of the two cities by three of the principal officers of
each city in the board of directors, and directed the company to proceed with the completion of the bridge without delay. The act of 1874 was entitled an act among other things “ to provide for the speedy construction of the bridge,” and the scheme of that act was. to place the company under the control of the two cities, and vest all the stock of the same in the two cities. The directors to be appointed under that act were to hold office until the completion of the bridge. The act declared the bridge to be a public highway; and for the purpose of completing it authorized the two cities to advance further sums of money, and take stock therefor, and it provided for the application of the income of the bridge after its completion. All the provisions looked to a completion of the bridge, and no limitation was placed upon the cost thereof. The act of 1875, is entitled an act, among other things, providing for the completion and management of the bridge. The whole act has in view the completion of the bridge and its management after completion. It is provided that it “ shall be completed and managed as hereinafter provided for and on behalf of the cities ; ” that the plan and construction thereof shall be under the control and direction of the trustees ; that it shall be a public work to be constructed by the two cities : and that the expense of constructing and maintaining it, shall be defrayed by the two cities in the proportion mentioned : and-then it is provided that the trustees shall call upon the cities for the needed funds “provided however that the whole amount to be paid by both cities, shall not exceed eight millions of dollars.” There is no requirement that the trustees shall first estimate the cost of the entire bridge, or that they shall not enter upon the construction thereof unless the expense can be kept within $8,000,000. If it had been intended That the trustees should not enter upon the completion of the bridge, without first determining that in no event it should cost more than that sum, a matter of such controlling importance would have been expressed in plain and explicit language. When the entire legislation
upon the subject is considered, the inference is not warranted that the Legislature meant that the structure then partially completed, upon which upwards of $5,000,000 had been expended, should be abandoned, unless the expense of its completion could be kept to the sum mentioned.
The construction of the bridge was a work of great magnitude, unparalleled in the world. The difficulties that might have to be encountered, could not be foreseen. It was a work requiring some years for its completion, and the fluctuations in the price of material and labor could not be anticipated. Another uncertain element in the cost of the bridge was the interest on all sums advanced by the two cities from time to time, which was to be added to the cost, and no one could forecast the amount of interest which wordd thus accumulate by necessary delays in the completion of the bridge. The nature of the work was such that it could not have been expected that it could be let by contract. These considerations show that it would have been impossible to estimate in advance the precise or even proximate cost of the bridge. And yet if the contention of the defendant be sound, if the trustees had first made an estimate bringing the cost within the sum named, and they or their successors had entered upon the construction of the bridge, and if it had subsequently unexpectedly and unavoidably turned out that the cost would exceed that sum by a few thousand dollars, the whole expenditure would have been unauthorized and illegal, the trustees disbursing the moneys in good faith, would have been personally liable, and the bridge itself would have been an unlawful structure. A construction reaching such a result cannot be the correct one. The Legislature intended the bridge should be completed. The work was of such exceptional character, that it did not know, and no one could know what it would cost, and hence no limit was placed upon its cost. It was probably supposed that the $8., 000,000 would be sufficient to complete the bridge, and that was the amount appropriated or made available for the trustees. It was a limit to
the amount which they could draw from the two cities, and was a constant admonition to them to keep the expenses within that sum. But they were to go on with the construction of the bridge, and were authorized to draw for that sum if needed, and when they had drawn to that limit they were to stop, and await further legislative authority. The Legislature could then authorize more money to be paid by the two cities, or could appropriate sufficient money from the State treasury. The proviso was, not that the bridge should not cost over $8,000,000, or that it should not be constructed if it was to cost more, but that the two cities should not be called upon to ¡Day more.
I have carefully examined the authorities cited on the argument upon the point last discussed, and find nothing in any of them, having any important bearing, and hence they are not referred to here.
Having thus given this case the careful examination, its magnitude requires, I feel confident in the conclusion, that the order appealed from is right, and should be affirmed.