Sweet v. City of Syracuse

• Decision Date: 25 June 1891
• Citation: 27 N.E. 1081,129 N.Y. 316
• Parties: SWEET v. CITY OF SYRACUSE et al. COMSTOCK v. SAME.
• Court: New York Court of Appeals Court of Appeals

129 N.Y. 316

27 N.E. 1081

SWEET

v.CITY OF SYRACUSE et al.

COMSTOCK

v.SAME.

Court of Appeals of New York.

June 25, 1891.

Cross-appeals from supreme court, general term, fourth department.

Action by William A. Sweet against the city of Syracuse and others, to enjoin the carrying out of the provisions of Laws N. Y. 1889, c. 291, as amended by Laws 1890, c. 314, entitled ‘An act to establish and maintain a water department in and for the city of Syracuse.’ Both plaintiff and defendants appeal from a judgment of the general term of the supreme court, fourth department, (14 N. Y. Supp. 421,)modifying a judgment entered on a decision at special term, dismissing the complaint, (11 N. Y. Supp. 114.)

Charles H. Peck, for plaintiff Sweet.

C. L. Stone and W. A. Beach, for Water Board.

Charles E. Ide, Corp. Counsel, for other defendants.

O'BRIEN, J.

The plaintiff, a tax-payer of the city of Syracuse, brought this action, under the provisions of section 1925 of the Code of Civil Procedure, as supplemented by chapter 531 of the Laws of 1881, and chapter 673 of the Laws of 1887, against the city, the mayor thereof, the members of the common council, and the water board, to perpetually restrain them from carrying into effect or exercising any of the powers conferred by chapter 291 of the Laws of 1889, entitled ‘An act to establish and maintain a water department in and for the city of Syracuse,’ as amended by chapter 314 of the Laws of 1890. It is alleged that the defendants are without power to perform the various acts and functions specified in this statute, for the reason that it is in conflict with certain provisions of the state constitution, and also that it was not legally enacted, not having received the assent of two-thirds of the members of both houses of the legislature, and that the execution thereof by the defendants would involve a culpable waste of the municipal funds and property. The special term held that the act was valid, and dismissed the complaint. The general term held that section 18 was invalid, and modified the judgment accordingly, which has all the effect, substantially, of a reversal and a decision in favor of the contention of the plaintiff. Both parties appeal from the judgment as thus modified, the plaintiff because the judgment of the trial court was not wholly reversed, and the defendants because it was, in any respect, modified.

The act authorized the mayor to appoint a board of water commissioners to constitute the water board. This board was authorized for and in the name of the city to acquire, construct, maintain, control, and operate a system of water-works to furnish the city and its inhabitants with water from Skaneateles lake, and to acquire all lands, waters, and other property necessary for this purpose. The power to exercise the right of eminent domain was conferred, and the procedure provided for. For the purpose of defraying the expenses of the work, power was given to issue and sell the bonds of the city, whenever the board considered it necessary, to an amount not exceeding $3,000,000, all payable July 1, 1920, with interest payable semi-annually, but no sinking fund was provided for. The eighteenth section, as amended in 1890, and which was pronounced invalid, authorized the board, under the conditions and restrictions thereinafter mentioned, to take and conduct water, not required for the Erie canal, from Skaneateles lake to the city, through a pipe or main not exceeding 30 inches in diameter, for the purpose of supplying the city and its inhabitants with water. But, before taking any water from this source, the board was required, at the cost and expense of the city, to increase the storage capacity of the lake sufficiently to store therein all the ordinary flow of its water shed; the fact of such reconstruction for increased storage of the water to be certified by the state engineer and the superintendent of public works, and filed in the office of the last-named official. The plans and specifications for all this work were to be prepared or approved by the state engineer, and all the work executed under the direction, supervision, and control of the state superintendent of public works, under whose exclusive charge and control the dam, and all structures connected therewith, together with the regulation at all times of the flow of water from the lake into the pipe, were to remain; all necessary repairs to be made under his direction, at the expense of the city. He was authorized and required, if for any reason the flow of water into the pipe impaired the necessary and sufficient supply for the use of the Erie canal, to stop such flow, in whole or in part, whenever in his judgment it was necessary in order to secure a full supply for the canal. The rights of the city in and to the use of the surplus waters of the lake conferred by the act were expressly declared to be at all times subject to the superior claims of the state thereto, and power was given to the state engineer to prescribe the plan of construction of the gate-house or other means for delivering the water of the lake into the pipe. It was further provided that the city should, at all times, protect and save the state harmless from and against all claims and demands of riparian owners upon the lake and outlet, for loss or damage occasioned by any act or structure authorized by the statute, and that before any water was taken from the lake the city should acquire or extinguish all water-power rights upon the outlet, to be affected by the proposed storage of water, and, subject to these restrictions, general power was given to the board to perform all acts and acquire all property necessary or proper to enable the city to store and obtain water from the lake. It appears from the findings that Skaneateles lake is a body of water distant about 17 miles from Syracuse. Its length is about 15 miles, and its general width about 1 mile, with a surface area of about 13 square miles, and a watershed, including the surface, of 73 1/4 square miles. It is about 453 feet above the Jordan level of the Erie canal, and discharges its water through an outlet known as ‘Skaneateles Creek,’ about 10 miles long, into the Seneca river, thence into the Oswego river and into Lake Ontario. The lake has been for many years navigated by steam-boats and other crafts, but there is no navigable communication between it and any other waters.

The controversy between the parties requires this court to pass upon the validity of an act of the legislature. The principles governing such an inquiry were well stated by RUGER, C. J., in People v. Angle, 109 N. Y. 567, 17 N. E. Rep. 413: ‘Within settled rules, it requires a case to be made showing clearly that the statute, when fairly and reasonably construed, is brought into conflict with some provision of the constitution, before the court can be justified in pronouncing it an unauthorized expression of the legislative will. It the act and the constitution can be so construed as to enable both to stand, and each can be given a legitimate office to perform, it is the duty of the court to give them such construction; but, if this cannot be done, it is equally our duty to declare the supremacy of the constitutional provision and the nullity of the statute. While every presumption is in favor of the constitutionality of the law, if, nevertheless, it appears that its enforcement must necessarily produce a conflict with the letter or spirit of the constitution, it is the duty of the court to condemn the law.’ The bonds of the city which this statute authorized the board to issue had more than 20 years to run, and, as already observed, no sinking fund was provided for. The plaintiff contends that, for this reason, the act violates section 11 of article 8 of the constitution, which limits the power of certain cities to contract debts and issue money obligations. This section does forbid the creation of any debt by any city, except for city purposes; and this is the only restriction which the constitution imposes upon the power of the legislature to authorize cities, not containing a population of over 100,000 inhabitants, to incur indebtedness. No city can give any money or property, or loan its money or credit, to or in aid of any individual or corporation, or become the owner of stock in or bonds of such corporation. These prohibitions are general, and applicable to all cities alike, without regard to population. A further restriction upon the power to create debts given for city purposes is also placed upon cities containing over 100,000 inhabitants, which the plaintiff invokes to nullify the statute in question. As it is conceded that Syracuse contains less than 100,000 population, and as it is obvious that the bonds to be issued for a water supply is a city purpose, we are clear that the prohibition does not apply to the statute under consideration. The first two paragraphs of the section, as it now stands, were adopted in 1874, and they apply to all cities, but exclude from the restrictions upon the power to create debts such obligations as are given for municipal purposes. The remainder of the section was adopted in 1884, and does impose restrictions upon the power to create debts and levy taxes even for city purposes; but these restrictions, as already observed, are limited to cities of more than 100,000 inhabitants, and to counties containing such a city. In giving construction to a provision of the constitution, its history, and the conditions and circumstances attending its adoption, must be kept in view, and the effect of subsequent amendments are determined by the same rules applicable to the interpretation of statutes. People v. Angle, supra.

The general policy of the state to restrict the power of cities and villages, in respect to the power of taxation, borrowing money, and contracting debts, indicated in section 9, art. 8, of the constitution, as adopted in 1846, and ...