The People Ex Rel. Murphy v. . Kelly , 5 Abb. N. Cas. 383 ( 1879 )

The question which has most grasped my mind, is whether the Legislature meant to fix a bound to the cost of the bridge. I have been led to think that it did. Such, it seems to me, is the true construction of the act of May 14, 1875.

I am aware of the rules of law; that a grant of general power carries with it the right to do everything that is needful or fairly incidental to the due execution of that power (Foote v.Salem, 14 Allen, 92); and that where there is no express limitation upon the power given, an inferential or implied limitation that would defeat the object of giving the power, cannot be made or sustained (Cook v. Commrs., etc., 6 McLean, 112); and as following therefrom, that if a statute, giving a power and making it a duty to construct a public work, provides an appropriation in a sum named, the sum does not by inference or implication define or limit the power.

But when all this is conceded, it is also to be conceded, that the Legislature may, in its wise foresight, give a power and express the gift in general terms, and yet fix the bound of cost beyond which the use of the power cannot go. Thus, when a general act declares that no contract shall be made by certain officers of government, save under a law authorizing the same, or under an appropriation big enough for the fulfillment of it, and an act then gives power to cause a public work to be constructed, it is not enough to warrant a contract for the work; there must be power thereto in express terms, or an appropriation large enough for it. So that it comes at last to this, whether by the words used in an act, the Legislature, though it has given power in general terms, has not also put a bound to the cost. In my judgment, both the words used in this act, and the help to the interpretation of them yielded by the legislation in parimateria, show that the Legislature meant to name a sum which should be the bound of cost.

It is with modest feeling that I suggest, that the question has been hidden somewhat in mistaken analogies. The act has been treated as one providing for the doing of a work of that general public, of which the Legislature is the prime representative in giving the power and directing the raising of means; and as one providing that one set of public agents shall make the plans and do the work and make payment therefor, and another set of public agents raise the means of payment and hand them over on call. The case is not that, nor like that. The act, at the point of view at which we now are, is simply this: One which permits the two cities to complete the bridge, and to pay therefor by money raised by bonds, ultimately to be redeemed by the avails of taxation. The provision for trustees, though seeming to form a body of some importance, is merely the making of a new set of municipal agents. What they do is for the cities, and not for themselves, nor for any other principal. The parties to the act are only the Legislature and the two municipal bodies. We should look upon them thus: The two cities ask from the Legislature its permission to finish the bridge. The Legislature says to them: You together may finish the bridge; you may pay therefor by your bonds; but the whole amount to be paid by you both, for that purpose shall not exceed $8,000,000. To say that this does not restrict the cost, it appears to me, is to rest in names, and not reach things. Only these two cities can finish the bridge; only they can pay therefor; yet they can pay no more than a sum named. When that sum has been used in bridge building, the work must stop. It may need more to finish it; but as no more can be paid out to finish it, it can cost no more. That is to say, there is then no lawful power to lay out another cent upon it. The force of the act has been spent. Who is to say that the Legislature will again give power to raise and expend other millions or thousands? Until the Legislature does give power, no more can be raised and expended; and until then, that structure can never be of any more cost to the two cities. Whatever be its stage of progress, useful or useless, the authorized limit of the cost of it has been reached. Such is the logical result from the decision in 14 Allen (supra). It was there held that the words of the act, in that case, authorizing the "issue of scrip to an amount not exceeding in the whole" a sum named, was a limit to that amount of the permanent and municipal debt which could be made; but that it was not a limit on the whole cost of the work, for there was open to the city the means of temporary loans or local taxation. Had the words been there, as they are here, "the whole amount to be paid shall not exceed $8,000,000," would not a parity of reason have made that sum a limit to which expenditure could run? And would not that be a limit upon actual cost, whatever might be the cost to which plans resting in contemplation would run, if completed? (Hasbrouck v. Milwaukee, 13 Wis., 37.) Let me make an illustration: If I should say to one, I make you my agent; go buy for me a steamship, and you may give my notes for the price; I put no limit on the price that he may give, or on the amount of the notes he may make. If I say to him, buy for me a steamship, yet the whole sum to be given for her must not exceed $800,000, and to that amount you may issue my notes; there is clearly a bound beyond which he may not go. Nor is the case different, when I give the authority to buy to one agent, with power to call on another agent for the means of payment. Nor is it an impossibility, either in law or in fact, to put a limit on the expense, where the cost of the project is not to be exactly ascertained at the start. Though it be problematical and contingent it is my right, and it is in my power, by the use of words, to hold my agent within a limit. Thus, I may say to an agent, build me a steamship, of such tonnage and power, but it must not cost more than a sum named. He is bound to keep in mind the limit I have fixed. If he reaches it, and the work is not done, he may not go on. What is his position as to liability to me for having improvidently begun, when he could not reasonably expect to finish, it is not needful here to say. What is his liability to others, with whom he has made contracts beyond the means promised to him, has been decided by this court in Paulding v. Cooper,^* not yet reported. If a natural person may put such a limit upon delegated power, there is no reason why any other giver of power may not do so. It is then a question of the meaning of the phrases used in giving it. When we turn to section three of the act of May 14, 1875, we see that the pith of it is to confer authority upon the two cities to build the bridge, and to issue their bonds to raise the means to meet the expense, but with a limit upon that expense which need not be more succinctly or more plainly expressed than in the language of the act; "provided, however, that the whole amount to be paid by both shall not exceed $8,000,000." The amount which they have power to pay must be the amount to which they may go in expenditure; and the amount to which they may go in expenditure is the amount which the work may cost. Though the plans may have been made so large, by design, or ignorance, or mistake, as to be too great for the sum authorized, that does not warrant going on, when the limit has been reached to which expenditure may run. The work must stop; and it is for the source of power to consider what shall then be done. In my judgment, when the Legislature had passed the act of 1875, it, for the time being, had done with the matter. The bridge was not a State work, like the Erie canal or the State capitol, which the State was doing, and for which the Legislature was making and to make appropriations, from time to time. It was a local municipal work, as to which the Legislature had no more at that time to say than to give permission to do it, and with power to affix conditions to the permission. So that the considerations which are urged drawn from the nature of a public work involving much expenditure, and much time to do, and needing only appropriations from year to year of comparatively limited amount, are not in place here. Those considerations are appropriate where the Legislature is the one agent of the public, whose function it is to direct the work and raise the means, and there are other agents of the public, whose function it is to devise the plan, and to do the work and lay out the money. But here are two corporate entities, with no power to enter upon a project conceived to be of municipal utility, who come as petitioners to the Legislature, which may give or withhold, and may affix conditions and limits. The Legislature gives to them power to build, power to pay for the building, and power to raise the money in a certain way. It is a single grant of power to single entities. The actors, who are to use each branch of the power, are the same. In using each branch of it, they can go no further than the bound of the power given; and that bound is upon the whole power and upon each branch of it. It is plain, I think, that the two cities are in a different position from that above indicated, of separate agents of the general public. Nor, in my judgment, is the case like that in 6 McLean (supra). There a county was authorized to do a work. As well as can be gathered from the opinion in the case and the head-note, (for there is no statement of facts) an issue of bonds to the amount of $200,000 was authorized, and no other means of payment were provided for. But there were no words of restriction, as there are here. It was held that the specification of the amount to which bonds were to be issued was not an implied limitation upon the cost of the work. One argument used is, that in all public works, either by Federal or State governments, it is not usual to appropriate, when the work will require several years for its completion, more than a small part of the necessary expenditure (at once, I suppose, is to be understood), as any other course, especially when the money must be borrowed, would be wasteful. It will be seen, at once, that this reasoning does not apply to this case. For here it is expressly said, that the whole amount to be paid shall not exceed $8,000,000. Besides, the "wasteful expenditure" likely to arise from a single appropriation in gross, is guarded against by a limit upon the amount which shall be paid in each year, to wit: $1,000,000 by one city, and $2,000,000 by the other; and by the provision that the interest on all bonds issued shall be counted as part of the gross sum of $8,000,000. Then the words here, "the whole amount to be paid shall not exceed," is a limit on what may be paid, put upon the two cities; and as the two cities, and no other person or body, is to build and to pay, is it not a limit upon the right to incur a liability to pay, which is the same as a limit upon what the work may cost? That is to say, it is a prohibition upon doing more work than that sum will pay for; which is a limit upon actual cost, for there can be no further cost, without the intervention of the Legislature giving further power to raise and pay money.

I think too that the history of this enterprise, as shown in legislation, indicates forcibly that it was the purpose of the Legislature to set up a bound of cost. It was started as a private enterprise, doubtless with the notion, at first, of private gain therefrom. The amount of the capital stock is, it is true, not the limit to which a corporation may go, in the purchase or expenditure for property. Yet, when persons ask of the Legislature a charter for a purpose, the sum at which they name the capital is an indication to the law makers of what is then thought to be enough to set the corporation going and making profits. The corporation started with a named capital of five millions of dollars, but with the not unusual power to increase. The project looked so feasible and so fruitful, at that sum, that though the privilege was given to the two cities of taking the work from the private corporators, it was upon conditions that the property should be paid for by the cities, at cost and at a premium of 33 1/3 per cent in addition, and that the bridge be made free. The cities were permitted to become stockholders, but with no provision for a voice in the management. That provision was made two years after, when, as we may infer, the work began to look too large for private means; and then the requirement was made that the bridge be built by June 1, 1874. It was not then done; but on the fifth of that month, an act was passed to amend the original act, and "to provide for the speedy construction ofthe bridge;" and from it, it is apparent that need was felt of public aid. For the purpose of completing it, the two cities were authorized to subscribe three millions, in proportions named. The use of this phrase, for the purpose of completingit, connected with the amount named, is significant. Here was an indication of the legislative conception, at that time, of what money was needed to complete the bridge, and of the sum which the Legislature would permit the two cities to pay therefor. And as further indication of a purpose to limit the amount, was the singular provision that the interest of the bonds issued under the act should form part of the cost, and should be deducted from the amount of payment. I can but regard this peculiar provision as significant of a purpose to restrict the municipal expenditure to the sum named and expressly warranted by the Legislature. In May 14, 1875, came the act more immediately before us, when the purpose of building the bridge by private enterprise seems to have been given up as too large for private hands, and the Legislature was asked to permit the two cities to become the only builders and owners of it. I think that we can see, from its previous guarded action, as shown in the statutes passed, that the Legislature was not willing to put the cities upon a work of unrestricted cost, and that the proviso already quoted is charged with more meaning and intensity, from the previous legislative action. I think too that these repeated applications to the Legislature, for new and varied enactments, made it plain to the law-maker that the cost of the work would be liable to run beyond first expectation, and that, for the safety of the cities, there should be set up a bound, beyond which expenditure and liability should not go, without renewed legislative permission. There is too the provision above alluded to, and repeated in this act, that the interest upon all bonds issued by the two cities should be charged as part of the construction, and be withheld from the annual payments. If the purpose was to have the cities build, whatever it might cost to carry out the plan, or if the purpose was to have the bridge built, whatever might be the cost, where the good or saving of this provision? Of what avail to withhold an amount equal to the interest, and to make it part of the cost, unless it was to keep the cost from going beyond the limit of $8,000,000, the amount of the principal sum, for which bonds could be issued? If the cost might go beyond that sum, it would have to be made up in principal of bonds, or by taxation, or other way of raising money. This provision is certainly significant of the purpose to fix a limit to the cost of the work. There may have been the purpose also to compel the diligent prosecution of the work, and the speedy raising of the money upon the bonds called for and issued, and the prompt disbursement of it in the work. But a chief design would seem to be, that the cities should not lay out upon the bridge more than the sum named as the limit of the principal of the bonds they might issue; and as by the provisions of this act, none but the two cities could lay out money upon it, it was effectual that the cost of the bridge could not go beyond that sum.

It is said, that the Legislature provided by the act that the bridge should be a public work; and should be constructed by the two cities, for the accommodation, convenience, and safe travel of the inhabitants of the district. It is argued thence, that the chief idea in the legislative mind was the finishing of the work in a manner safe and sufficient; and that the cost of doing it was a minor consideration. I do not think that we can justly say that. The constitution enjoins upon the Legislature, that it shall restrict in cities the power of taxation, contracting debts, and loaning their credit; Const. art. VIII, § 9. Can we properly attribute to legislative action, in a particular case, that in framing a statute to meet it, it lost sight of, or seeing, was careless of its general constitutional duty? For my part, I had rather come to the interpretation of a legislative act with a sense of the existence of this constitutional injunction, and with a feeling that the law maker acted in the presence of it. Besides, I cannot agree that, in looking at a law providing for work that will cost money, to be raised finally by taxation, it is the proper judicial mood, to assume or to concede that the Legislature was not prudent and forecasting, and had no thought of the burden it was about to lay upon the people. It would not be wise or honest, for it so to do. It would be reckless and improvident. Hence, when words of restriction are found in a statute authorizing a work, costly at the best, they are not to be narrowed in their reach, by the assumption that the Legislature looked only at the utility of the work when done, but to have a liberal and broad operation, and to be applied to all parts of the act which may fairly fall within their force, upon the other assumption that the Legislature will not carelessly delegate the power to burden the people with debt, but will, as prudent agents, count the cost. So when I read the act, by which it is declared that the bridge is to be constructed in the manner above indicated, and that the expense thereof shall be defrayed by the two cities; and I find it further declared, thatfor such purpose they may be called on for yearly payments, but that the whole amount shall not exceed $8,000,000; I am unable to repel the conviction that the Legislature meant that the two cities should carry out "such purpose" by the expenditure of not more than that sum; and that the amount named is a limit upon "such purpose," as well as upon the liability of the two cities to pay for "such purpose." I think that the language of the act, in its restrictive words, applies to all that goes before them in the section in which they occur, and that the "expense of constructing," etc., is as well limited by them as the amount to be paid by the municipalities, which alone can lawfully construct it. The purpose is to construct the bridge; for that purpose the two cities may pay a fixed sum, and no more; as no one else may pay, how is more to be paid; and if no more can be paid, how can the work cost more? It cannot cost more, until the Legislature is again appealed to and again gives power to raise and expend money.

It is said, that the Legislature contemplated a finished bridge. So, indeed, it did. It is argued therefrom, that it meant not to fix a limit to the cost of finishing it. It did not contemplate an unfinished bridge. It looked for a finished bridge, at the expenditure of the sum named; otherwise the proviso of limitation was useless. When, then, it gave the power to the two cities to finish it, and limited the exercise of that power within an expenditure of $8,000,000, did it not contemplate that that sum would finish and must finish it; especially when the sum is named, not in the manner of making an annual or recurring appropriation, but as a gross sum to be spread over years of progress in the work, to be called for as needed, and so that waste may not take place by accumulation of idle funds, and from interest on bonds. The Legislature never contemplated an unfinished bridge; and yet this will be the result with the law as it now stands. As it contemplated a finished bridge, and forbid further payment to that end than the sum named, it contemplated a bridge finished with that sum. We cannot speculate upon the future action of the Legislature. It may, or may not, provide for the finishing the bridge, after the $8,000,000 are expended. This court is to construe the legislative action only as it is. That action will produce only an unfinished structure, which was clearly never intended. It is for the Legislature, and not the courts, to determine whether a more expensive structure shall be made. From the language of the act, then, and from the intent of the Legislature, as gathered from the successive acts upon this subject, I am of the opinion that it was the legislative purpose to fix a limit to the cost of the bridge.

And now to practically apply the result of this discussion.

It is conceded that the contemplated cost of the bridge will exceed, by a considerable sum, the $8,000,000. So that, if the defendant pays the million called for, his principal, the city of New York, will not have a completed bridge. And if the views above expressed are correct, it never will have, until the Legislature shall be again appealed to, and shall again give permission to pay more. Is it not, then, the duty of all concerned to stop, until that permission be obtained, if it may be? It is contingent whether it will be. While contingent, it seems the part of financial wisdom to put no more money into a work which may be of so much more useless cost. Is it not, then, within the bounds of a just and proper exercise of discretion, for the defendant to refuse to issue further bonds of his municipal principal? At any rate, is it not proper for a court to decline to issue its discretionary writ of mandamus to compel him to do that which is, to say the least, of doubtful expediency?

As these considerations have brought me to the conclusion that the mandamus should not have issued, I am for a reversal of the order of the General Term, and for an affirmance of that of the Special Term, without passing upon the other serious questions presented by the appellant.

RAPALLO, ANDREWS and DANFORTH, JJ., concur with EARL, J.

CHURCH, Ch. J., and MILLER, J., concur with FOLGER, J.

Judgment affirmed.

^* 74 N.Y., 619.