Albany Cnty. v. Hooker

• Decision Date: 09 January 1912
• Citation: 97 N.E. 403,204 N.Y. 1
• Parties: ALBANY COUNTY v. HOOKER et al., State Commission of Highways, et al.
• Court: New York Court of Appeals Court of Appeals

204 N.Y. 1

97 N.E. 403

ALBANY COUNTY

v.HOOKER et al., State Commission of Highways, et al.

Court of Appeals of New York.

Jan. 9, 1912.

Appeal from Supreme Court, Appellate Division, Third Department.

Action by the County of Albany against S. Percy Hooker and others, composing the State Commission of Highways of the City of New York, and others. From an order of the Appellate Division (145 App. Div. 945,130 N. Y. Supp. 1103) denying an application by plaintiff for an injunction against defendants during the pendency of the action, plaintiff, by permission (131 N. Y. Supp. 1101), appeals on certified question. Question answered in the negative, and order affirmed.

Harold J. Hinman, for appellant.

Henry Selden Bacon, for respondents.

Thomas F. Conway, for certain counties, interveners.

CHASE, J.

Section 12 of article 7 of the Constitution of this state was added by an amendment approved by the people in 1905 and took effect from and after January 1, 1906, and is as follows: ‘A debt or debts of the state may be authorized by law for the improvement of highways. Such highways shall be determined under general laws, which shall also provide for the equitable apportionment thereof among the counties. The aggregate of the debts authorized by this section shall not at any one time exceed the sum of fifty millions of dollars. The payment of the annual interest on such debt and the creation of a sinking fund of at least two per centum per annum to discharge the principal at maturity shall be provided by general laws whose force and effect shall not be diminished during the existence of any debt created thereunder. The Legislature may by general laws require the county or town or both to pay to the sinking fund the proportionate part of the cost of any such highway within the boundaries of such county or town and the proportionate part of the interest thereon, but no county shall at any time for any highway be required to pay more than thirty-five hundredths of the cost of such highway, and no town more than fifteen hundredths. None of the provisions of the fourth section of this article shall apply to debts for the improvement of highways hereby authorized.’

By chapter 469 of the Laws of 1906 and the amendment thereof by chapter 718 of the Laws of 1907, it was provided that bonds should be issued pursuant to the provisions of said section of the Constitution; and that the proceeds thereof be expended for the improvement of highways in a manner provided by chapter 115 of the Laws of 1898 and the acts amendatory thereof. By the act of 1898, provision was made for the improvement of highways, one-half of the expense thereof to be paid by the state, 35 per cent. by the county, and 15 per cent. by the town in which the highways improved is situated, except that in specified instances the owners of the land benefited by such improvement should pay 15 per cent. of the cost thereof, instead of the town . Maps of the highways of the state, prepared by the state engineer and surveyor and submitted to the Legislature, pursuant to the provisions of chapter 115 of the Laws of 1898 and the acts amendatory thereof, as such maps were modified by said officer after consultation with the representatives of the several boards of supervisors of the state and with the members of the Legislature, were approved by chapter 715 of the Laws of 1907.

The highway law of 1908 (chapter 330 of the Laws of 1908) classified highways, and the ‘state highways,’ being those constructed or improved at the sole expense of the state, were enumerated (section 120). ‘County highways,’ defined as ‘those heretofore or hereafter constructed or improved at the joint expense of the state, county and town’ (section 3, subd. 2), were further described to be ‘those highways in each county determined by the commission to be of sufficient public importance to come within the purposes of this chapter, so as to constitute a part of a properly developed system of improved market roads within the county, taking into account the use, location and value of such highways for the purposes of common traffic and travel. Such county highways shall be equitably apportioned by the commission among the several counties without discrimination. In making such apportionment the commission shall take into consideration the total mileage of state highways which shall be hereafter constructed or improved in each county, and also the highways therein which have been constructed or improved prior to the taking effect of this acticle from funds made available by the issue and sale of bonds as provided in section twelve of article seven of the Constitution, so that there shall be an equitable distribution as between the counties of all highways built in whole or in part from such funds.’ Section 122.

By the acts referred to and other acts amendatory thereof, state and county highways have been constructed by general law.

In 1911, prior to this action being brought, chapters 92, 133, 134, 135, 136, 154, and 155 of the laws of that year were enacted. Said chapter 92, which is fairly representative of all of said statutes of 1911, is as follows: ‘The sum of one million dollars ($1,000,000), to become available immediately, is hereby appropriated, payable out of moneys realized from bonds issued in accordance with the provisions of chapter four hundred and sixty-nine of the laws of nineteen hundred and six, as amended by chapter seven hundred and eighteen of the laws of nineteen hundredand seven and the laws amendatory thereof. The moneys hereby appropriated shall be expended in accordance with the provisions of article six of the highway law, for the construction and improvement of portions of state routes numbers four and twelve, commencing at a point on route number four, on the dividing line between the countries of Broome and Tioga; running thence westerly through the southern portions of Tioga and Chemung counties to Elmira; running thence northerly from the city of Elmira to a point at or near Horseheads, being the intersection of route number twelve with route number four; running thence northerly on route number twelve through the counties of Schuyler and Yates by the way of Watkins to a point on route number six, being the intersection of route number twelve and route number six, as defined by section one hundred and twenty of chapter thirty of the laws of nineteen hundred and nine, so as to complete the connection between state highways already built on the aforesaid routes. And providing the whole of the aforesaid amount is not necessary to complete the aforesaid routes, then the amount unexpended shall be used for the construction and improvement of state route number thirty-six, commencing at a point on said state route number thirty-six, at or near Owego and running in a northerly direction to a point on the dividing line between Tioga and Tompkins counties. No county in which roads are improved under this chapter shall participate in the future annual appropriation of funds for the improvement of state roads until such time as the counties not participating in the funds provided by this chapter shall have received such amount of improvement as will equalize the milege.’

This action is brought to have said Acts of 1911 declared unconstitutional and void, and of no effect, and to restrain and enjoin the state officers having to do therewith, among other things, from awarding and executing any contract and from advertising for any further bids for highways to be constructed from funds made available by said Acts of 1911.

The plaintiff applied to the Appellate Division of the Supreme Court in the third judicial department for an injunction substantially as prayed for in the complaint to continue during the pendency of the action. The court denied the injunction, on the express ground that the county of Albany cannot maintain the action. County of Albany v. Hooker, 145 App. Div. 945,130 N. Y . Supp. 1103. Upon application by the plaintiff, the court (131 N. Y. Supp. 1101) certified that a question of law had arisen which, in its opinion, ought to be reviewed by the Court of Appeals, and it granted leave to appeal to this court, and the question certified is, ‘Has the county of Albany legal capacity to bring this action?’

[1] Our jurisdiction is restricted to a review of that question. Constitution, art. 6, § 9; Code Civil Procedure, § 190. It is assumed that by the question submitted it is intended that this court shall determine whether the county has capacity to maintain the particular action stated in the complaint, even assuming that a good cause of action in some behalf is alleged.

[2] Authority is not given to the plaintiff to maintain this action by the statutes authorizing the so-called ‘taxpayers' action.’ General Municipal Law, § 51; Code Civil Procedure, § 1925. The statutes limit the right to bring such an action to persons and corporations who are taxpayers as therein described, and the actions thereby authorized are generally specified; but the action sought to be maintained by the plaintiff is not included therein. It is conceded that there is no express enactment of the Legislature authorizing the plaintiff to maintain this action.

[3] The state, in the exercise of its sovereign power, has done so in part by dividing its territory into counties, and imposing upon them certain governmental and political powers and duties. It has been and is a convenient way of exercising its sovereign authority. In the exercise of such powers and in the performance of such duties, the counties are mere agents of the state and component parts of it. They are not, in the exercise of such authority, subject to suit any more than the state itself, and certainly they cannot maintain an action against the state, of whose sovereign power they are a part, or against state officers who are expressly charged with the performance of sovereign power. Counties, in the exercise of...