Opinion
November 14, 1906.
J.F. Connor, for the plaintiff.
E.L. Hunt, for the defendant.
It is not apparent just how the amount of this bond issue was arrived at nor is it material. The purpose thereof is to relieve individual property owners of a portion of the assessments which have been levied against their property for this public improvement, and which assessments, under the provisions of the city charter, are liens against their property, and are concededly enforcible against the same, and the legality of which is unquestioned.
The power of the city to issue these bonds must be derived from some legislative enactment. ( Wells v. Town of Salina, 119 N.Y. 280.) Such power is claimed to exist in subdivision 25 of section 59 of the city charter, as amended, which, so far as pertinent to this question, provides that "Whenever the common council shall resolve, by the affirmative vote of a majority of all its members, that an extraordinary expenditure ought for the benefit of the city to be made for any specific purpose set forth in the resolution, it shall make an estimate of the sum necessary therefor," and then it provides for the submission of the question to a vote of the taxpayers and for raising such sum by taxation or bonds, prescribing the procedure which has been followed in this case and which has resulted in the bonds in question.
Underlying all expenditures authorized by this statute there is the basic principle that such expenditure must be "for the benefit of the city." I am at a loss to discover by what reasoning process it can be claimed that this proposed expenditure is to benefit the city. It is prejudicial to the city without an equivalent therefor. It benefits not the city but individual taxpayers at the expense of the city. If it be urged that these special assessments are unjust to the property owners affected thereby, in that the latter are subjected to an unfair proportion of the cost of this city improvement, it may be said in answer that no system of taxation has yet been devised resulting in an absolutely fair distribution of the public burden. Equality of taxation is one of the unsolved problems which has engaged the attention of political economists since Adam Smith published his Canons of Taxation. It is one of the bright iridescent dreams of the future scarcely to be hoped for, much less expected, as long as mental activities are circumscribed by human limitations. No equitable reason appears why these property owners should be relieved from this taxation which would not equally apply to a very large proportion of the inhabitants of the State who are burdened with taxation, and who perchance may bear a greater proportion of such burden than their more fortunate neighbors. But whether these taxes are inequitable and unduly burdensome is not the question. They have been lawfully assessed and are collectible. Hence the bonds in question would relieve these particular taxpayers from the payment of their taxes, but in no sense would they benefit the city.
It clearly is not the purpose of this act to relieve persons from lawfully imposed taxation. The act contemplates expenditures which in some way will prove beneficial to the city and which will not merely prove beneficial to some of the taxpayers of the city at the expense of the latter. This proposed expenditure does not subserve any municipal purpose. The expenditure for the sewer was, in the language of the statute, "an extraordinary expenditure," and "for the benefit of the city." But that has been provided for and is an accomplished fact. This proposed expenditure is not for the purpose of constructing the sewer, but for the purpose of relieving certain taxpayers from their legal burden of contributing to the expense of such sewer. The citation of authorities in reference to statutes conferring power on municipalities to raise money is uninstructive. Such were the cases of Terrel v. Wheeler (49 Hun, 262; 2 N.Y. Supp. 86; affd., 123 N.Y. 76; 33 N.Y. St. Repr. 404); Lamb v. Connolly ( 122 N.Y. 531); Cayuga County v. State of New York (153 id. 279), cited by plaintiff. Here no such power is granted by the statute in question for the proposed expenditure. The common council was not authorized thereby to submit to the taxpayers of the city any such proposition as was voted on, and all proceedings in reference to such proposition were void and the bonds are illegal.
All concurred.
Judgment ordered for defendant, with costs.