#### Berlin Iron Bridge Co. *v.*Wagner, Sole Commissioner of Highways.

*(Supreme Court, General Term, Third Department.*

July 7, 1890.)

L Bridges—Construction—Commissioner oe Highways.

1 Rev. St. ST. Y. p. 501, § 1, invests the commissioner of highways with the care, superintendence, repair, and improvement of highways and bridges within his town; and Laws N. Y. 1878, c. 377, as amended by Laws 1879, c. 67, charges him with the custody and disbursement of whatever money is raised by the town for those purposes. *Held,*that, where a town-meeting votes to raise and appropriate a sum of money for the erection of a bridge across a river, the commissioner of highways is charged with the duty to erect it, and to make appropriate contracts therefor, in the absence of any action placing the work in the hands of other agents.

8. Same—Special Town-Meeting—Issue oe Bonds—Application to County Board.

Laws N. Y. 1875, c. 482, as amended by Laws 1885, c. 451, provides that the board of county supervisors may authorize towns to borrow money for the erection of bridges; but that no authority shall be exercised under the act, except on the application of the town, to be made by a vote of the majority of the electors voting at a regular town-meeting, or at a special town-meeting “called for the purpose. ” *Held,*that an application by a town to the county board for permission to issue bonds for the erection of a bridge made pursuant to a vote of a special town-meeting called under 1 Rev. St. N. Y. pt. 1, c. 11, tit. 2, art. 1, § 7, as amended by chapter 259, Laws 1886, which authorizes a vote on the question of raising and appropriating moneys for the construction of a bridge, but which makes no provision *841for an application to the county board, and which provides that “no special town-meeting shall have power to act on any subjects other than such as are specified in this section, ” does not confer on the county board any power to authorize the issue of the bonds.

Case submitted on agreed statement.

■ Action by the Berlin Iron Bridge Company against Joseph E. Wagner, as sole commissioner of highways of the town of Oswegatchie, for money due it under a contract for the erection of a bridge across the Oswegatchie river.

Argued before Learned, P. J., and Landon and Mayham, JJ.

*A.*D. *Wales,*for plaintiff. *George R. Malby,*for defendant.

Landon, J.

The special town-meeting for the town of Oswegatchie was called and held and did vote to raise and appropriate $10,000 to maintain the highway bridge across the Oswegatchie river, at the Bel Weir rapids in the said town, in strict pursuance of section 7, art. 1, tit. 2, c. 11, pt. 1, of the Revised Statutes, as amended by chapter 259, Laws 1886. The amended section provides that special town-meetings “shall be held, whenever twelve or more persons eligible to the office of supervisor of the town shall, by application in writing signed by them and addressed to the town-clerk, require a special town-meeting to be called * * * to vote on the question of raising and appropriating moneys for the construction and maintenance of any bridge or bridges which such town may be authorized by law to erect or maintain. ” 1 Rev. St. p. 341, § 8, provides for giving the proper notice. The bridge was one which, by law, the town was bound to maintain. It was old and worn out, and had been condemned by the commissioner of highways as unfit for travel, and the superstructure of a new bridge was necessary. The old piers and abutments were still serviceable. One hundred and fifty-two ballots were cast for raising and appropriating the money, and three against the same. Assuming that no valid action was taken to place the erection of the bridge in the hands of other agents, then we think the sole commissioner of highways of the town was authorized bylaw to proceed with its erection upon the credit of the appropriation thus authorized, and in reliance upon the subsequent raising by tax of the amount of the appropriation, or so much thereof as should be necessary to meet the expense of the erection, such expense to be audited according to law. The Revised Statutes provide that “the commissioner of highways in the several towns in this state shall have the care and superintendence of the highways and bridges therein; and it shall be their duty (1) to give directions for the repairing of the roads and bridges within their respective towns; * * * (4) to cause the highways and bridges which are or may be erected over streams intersecting highways to be kept in repair. ” 1 Rev. St. p. 501, § 1. The ordinary highway labor due from inhabitants and tax-payers, and the fines and commutations which may be collected, furnish part of the resources which the commissioners of high ways must employ as a means to the performance of these duties. It is obvious that these means must often prove inadequate. Section 4 provided that $250 additional might be raised by tax, if the commissioners should require it. The commissioners might apply in open town-meeting for $250 more, (chapter 274, Laws 1832;) also for $750 more, (chapter 615, Laws 1857;) both of these extra sums, if voted, to be for the “improvement of roads and bridges.” Chapter 103, Laws 1858, amended by chapter 442, Laws 1865, authorized the commissioners of highways, by and with the consent of the board of town auditors, to cause roads and bridges destroyed by the elements or otherwise, after the annual town-meeting, to be immediately repaired or rebuilt, although the expense might exceed the sum already authorized by law, the same to be audited and raised by tax. Chapter 377, Laws 1878, amended by chapter 67,Laws 1879, requires that “all moneys raised and collected upon the taxable property of any of the towns of this state for high*842way and bridge purposes shall be paid over by town collectors of taxes to the commissioners of highways of the towns in which said moneys are so raised and collected, and to no other officer or person whatsoever;” permitting, however, the boards of supervisors to make the disposition provided for in chapter 855, Laws 1869, a statute, as it will be seen hereafter, under which the board of supervisors have not acted in this case. The act of 1878 makes it the duty of the commissioners of highways to expend all such moneys upon the highways and bridges. The appropriation voted at the special town-meeting became a town charge. 1 Rev. St. p. 501, § 4. The commissioners of highways must render an itemized account to the board of town auditors of all the moneys paid out by them, with the vouchers thereof, and also an account of the improvements made upon the roads and bridges. 1 Rev. St. p. 502, § 3, amended by chapter 396, Laws 1884. It will thus be seen that the commissioners of highways are charged with the care, 'superintendence, repairs, and improvement of highways and bridges within their respective towns, and with the custody and disbursement for the purpose of whatever money is provided for the same. ■ No other officers are, by state enactment, in like manner charged with respect to bridges within the town. It seems irresistibly to follow that, in the absence of any other valid provision for the erection of this bridge, the commissioner of highways was charged with the power and duty to erect it.

Cases are cited by the commissioner tending to show various limitations of his power. Of course he has no power except that conferred by statute, either expressly or by fair implication; and his power is strictly limited within his means. He can only obtain the means permitted by the several statutes. His power, duty, and liability are all measured by what he may do, and ought to do, within the means at his disposal. Given the means, he could build this bridge, and ought to build it. *Mather*v. *Crawford,*36 Barb. 564; *Huggans*v. *Riley,*4 N. Y. Supp. 282; *People v. Meach,*14 Abb. Pr. (N. S.) 429. He would therefore have the power to employ agents or servants to prosecute the work, and to procure the necessary materials. This involved the power to make appropriate contracts for the same. *Boots*v. *Washburn,*79 N. Y. 207. His contract with the plaintiff was within his powers, unless the facts next to be noticed took the power from the commissioner and lodged it elsewhere.

At the opening of the special town-meeting, above mentioned, a resolution was offered to the effect that application'be made to the board of supervisors of the county of St. Lawrence at the next session to authorize the town of Oswegatchie to borrow money to build the bridge, and for the appointment of commissioners to build it. The resolution, after some discussion, was laid upon the table by a *viva voee*vote of the electors present, and the voting by ballot upon the resolution to raise and appropriate money proceeded until about the time appointed for closing the polls, and until such voting by ballot ceased, when the resolution for the aforesaid application to the board of supervisors was again offered and concurred in with substantial unanimity by a *viva voce*vote of those present, about 25 in number. At the next session of the board of supervisors an application was made in pursuance of such resolution, and the board of supervisors, in compliance therewith, on the 21st day of November, 1889, passed a law authorizing the town to borrow $10,-000 upon its bonds, and appointing five commissioners to construct the bridge, prescribing details. On the 18th day of February, 1890, the board of supervisors repealed the said law, and passed another in place thereof. The second law was in intent and scope like the first, and was passed to obviate or cure supposed defects or illegalities in the first. The details of this law need not be given. We assume that in every respect it is valid, and transfers the power to erect the bridge from the commissioner of highways to the commissioners named in the law, provided the board of supervisors had jurisdiction to enact it. Between the passage of the first and second law the plaintiff and *843defendant entered into a contract whereby the plaintiff agreed to erect the bridge for the price of $9,200, one-half of which was to be paid upon delivery of the iron joist material of the bridge at the place of its erection. This the plaintiff has done, and if the contract is valid $4,600 are now due to it. The supervisors’ bill was passed in supposed pursuance of chapter 482, Laws 1875, and amendatory acts. The title of the bill so recites, and such recital is required by the second section of the act of 1875. The sixth subdivision of section 1, as amended by chapter 451, Laws 1885, forbids the board of supervisors to pass the law in question except as follows: “But no authority shall be exercised under this subdivision except upon the application of a town liable to be taxed for such purpose, to be made by a vote of a majority of the electors thereof, voting at a regular town-meeting, or at a special town-meeting called for the purpose, or upon the application of the supervisor, by and with the consent of the commissioner of highways, town-clerk, and justices of the peace of such town.” The special town-meeting in this case was not called for the purpose of making any application to' the board of supervisors. It was called in pursuance of the section of the Revised Statutes first cited in this opinion. That section does not embrace any provision for such an application. It specifies various other objects, and concludes as follows: “And no special town-meeting shall have power to act on any subjects other than such as are specified in this section.” As there was no power to make the application at the special town-meeting, as no other valid application was made, and as power to the board of supervisors to pass the law depends upon an authorized application, it necessarily follows that the power did not exist.

We are cited to *Town of Kirkwood*v. *Newburg,*45 Hun, 323. In that ease the authority of the special town-meeting to pass a somewhat similar ¡resolution was not challenged, and therefore was assumed. The meeting probably was held in pursuance of a law or resolution which boards of supervisors are authorized to make by subdivision 19, § 1, c. 482, Laws 1875, as follows: “To provide for the calling and holding of special town-meetings, to consider and decide any question upon which the electors of the town may be called to take action in accordance with the provisions of this act. ” The special town-meeting in *Bergen*v. *Gubna,*10 Hun, 11, was held under Authority conferred by the board of supervisors. The case of *Barker*v. *Town of Oswegatchie,*ante, 834, (decided by the special term,) arose under the facts in this case. It was an action by a tax-payer to restrain the commissioners from building the bridge. The learned judge assumed that the board of supervisors had the proper application before them. It needs no authority for the proposition that when the performance of a condition precedent lies at the foundation of the existence of a power its non-performance leaves the assumption of the power without foundation.

The learned counsel for the plaintiff argues with force that, assuming the existence of the proper application, boards of supervisors have no power to appoint commissioners *ih*such cases. We incline to the opinion that the weight of authority is the other way. Chapter 482, Laws 1875, is an enactment in pursuance of the constitutional authority to confer on boards of supervisors “further powers of local legislation and administration.” The legislature has legislative power, and hence may confer administrative power, and boards of supervisors may, under the constitution, if conferred, receive both legislative and administrative power. The power conferred upon boards of supervisors is a conference of the power appropriate to its execution, except as Statutory or constitutional provisions limit or conflict. Id. § 6. The appointment of commissioners to build bridges has long been regarded by the legislature and the courts as an appropriate means to their erection. Upon she case as submitted, as between the parties to the record the plaintiff is entitled to judgment for $4,600, and such judgment is ordered against the defendant.

*844Learned, P. J.,

(concurring.) If the vote of the town-meeting authorizing an application to the board of supervisors was not a vote “on the question of raising and appropriating moneys for the construction and maintenance” of this bridge, then, under chapter 259, Laws 1886, amending section 7, art. 1, tit. 2, c. 11, pt. 1, vol. 1, Rev. St., the special town-meeting could not vote upon it legally. If it was a vote on that question of raising money or incurring any town liability, then it should have been by ballot. Chapter 122, Laws 1883.

Mayham, J., concurs.