#### Talcott *et al. v.*City of Buffalo *et al.*

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

June 20, 1890.)

Municipal Corporations—Misconduct of Officers—Street Lighting.

Laws N. Y. 1881, c. 531, as amended by Laws 1887, c. 673, entitled “An act for the protection of tax-payers, ” provides that the act shall apply as well to those cases in which the officer or board has not, as to those in which he or it has, jurisdiction over the subject-matter of its action. A complaint in an action to restrain municipal authorities from substituting electric lighting for gas lighting in a certain street alleged that the erection of poles for electric lighting would impair the value of the land along the street, including plaintiffs’; that the contract price for the electric lighting was exorbitant, and largely in excess of the value thereof, and of the price paid by other municipalities therefor; that the cost would be much greater than that of gas lighting; that the change would render useless many gas-lamps, etc., owned by the city; and that gas lighting was economical, satisfactory, and such as was desired by a majority of the people of the city, and of tax-payers on the street. *Held,*that the allegations were sufficient, on demurrer, to warrant granting relief to the tax-payer, under the statute, though the municipal authorities had full control of the subject of street lighting.

Appeal from special term, Erie county.

Action by Anna Talcott and others against the city of Buffalo and others. Defendants appeal from an order overruling demurrers to the complaint. The demurrer of the city of Buffalo, and all of the defendants except Barnard, the comptroller, are upon the ground that the complaint does not state facts sufficient to constitute a cause of action, and that the common council of the city of Buffalo should have been made a party defendant. The demurrer of the comptroller is upon the sole ground that the complaint does not state facts sufficient to constitute a cause of action. The United States Electric Light & Power Company is a defendant, but its demurrer was sustained at special term, and no appeal has been taken from that part of the judgment.

Argued before Dwight, P. J., and Macombeb and Ooblett, JJ.

*Frank G. Laughlin,*for appellants. *Norris Morey,*for respondents.

Macombeb, J.

The appellants, other than the city of Buffalo and Barnard, the comptroller, are the aldermen, constituting the common council of that city. There seems to be no merit in that part of the demurrer alleging that the common council, by name, is a necessary party under chapter 519 of the Laws of 1870, which constitutes the charter of the city of Buffalo. We do not understand that the common council has any corporate existence, but is only a name to designate a body of aldermen of the city. The grave question is whether the facts alleged in the complaint constitute a cause of action against the defendants who have appealed.

The ease is brought to restrain the authorities of the city of Buffalo from substituting electric street lighting for that of gas in Bouck avenue, between Niagara street and Chapin place. Under the ordinances of the common council of the city, the Buffalo Gas-Light Company, in the year 1875, placed in a portion of this avenue gas lamps and mains and service pipes, and the expense thereof was borne by the city, but the same were received back by the city under local assessment upon the property of the persons benefited thereby. Extensions of these mains and increase of the lamps were made subsequently, so that in 1885 this entire avenue between the points stated was sufficiently supplied with gas for the proper lighting of the street, to the satisfaction of the city, and particularly of the residents along this avenue. The complaint further shows, at some length, that an alleged majority petition of these inhabitants was presented to the common council for the exchange of ■ this gas lighting to electric lighting, and a resolution granting the prayer of the petition was passed by that body on May 7, 1888. Subsequently an opposing petition against the electric light, and in favor of gas lighting, was *371presented to the common council, which, it is said, contained a majority of the names of the tax-payers, both in number of persons and in value of property, but that the same was disregarded by the aldermen. There are other allegations in the complaint to the effect that the resolution as originally passed, and as subsequently adhered to, notwithstanding the veto of the mayor thereof, was passed in violation of the rules established by the common council for its guidance. In the chartér of the city of Buffalo, however, we do not find any provision which requires the common council to act in the matter of street lighting in accordance with the request of the majority of the tax-payers; nor do we find theréin any law which prohibits the council from suspending its own rules, which, like those of all other parliamentary bodies, are enacted for its own guidance, the suspension of which cannot form the basis of any complaint from outside parties, unless the same is resorted to for the purpose of deceit, of which there is no pretense in this case.

But there is a serious question presented by the complaint, going directly to the question of abuse or misuse of official authority by the common council, by which the corporate property and moneys are so improperly and improvidently expended as to constitute a waste of public funds, under chapter 531 of the Laws of 1881, as amended by chapter 673 of the Laws of 1887, entitled “An act for the protection of tax-payers.” The present statute is aimed to prevent any illegal official act on the part of municipal officers, and to prevent waste or injury to property, funds, or estate of a municipality, and to make good the loss, if any such has happened. The most important addition to the original law is the last clause of the present statute, which is as follows: “The provisions of this act shall apply"as well to those cases in which the body, board, officer, agent, commissioner, or other person above-' named has not, as to those in which it or he has, jurisdiction over the subject-matter of its action.” Beyond question, the common council of the city of Buffalo had, under its charter, full power and control over the lighting of the streets of that city. Under this amendment, however, the members of that body cannot prevent the interference of a court of equity upon the ground that, having jurisdiction of the subject-matter, their action has the protection accorded to legislative discretion, and is therefore not reviewable by the-courts. Some eases, not necessary now to be referred to, had, with greater or less distinctness, intimated the existence of such a rule under the act as it. originally stood; and this amendment was doubtless supplied with a view of enabling the courts to interpose by injunction, where the contemplated action by the common council, though within its jurisdiction, was likely, through improvidence or carelessness, as well as through fraud and corruption, to result in the waste or injury to the funds of the municipality. It is not longer necessary for the tax-payer, in order to maintain his action, to allege and prove actual fraud or actual corruption on the part of the common council, or of any other municipal officer, as a basis of relief. The proof of such corruption and fraud, even where there exists a moral certainty of its existence, is a difficult matter to establish. This act, so passed for the protection of the tax-payer, should be liberally construed by the courts, in order to make effective the effort of the legislature to check the evils of careless, improvident, reckless, fraudulent, or corrupt action by the persons in charge of the administration of the affairs of municipal corporations. The language of Judge Allen, in the case of *Ayers*v. *Lawrence,*59 N. Y. 192, though given in a casé arising under the Laws of 1872, is, in its generalization, applicable to the statute as it now stands, and it has frequently been made the subject of judicial approval.

If these demurrers were interposed for the purpose of presenting to the-court the question whether it was competent for the common council to dispense with the lighting of the public streets by gas, and substitute electricity, even at a material increase of expense, they fail of their purpose. Had an*372swers, instead of demurrers, been interposed, and the plaintiffs put to their proofs, doubtless many of the allegations contained in the complaint would have failed of substantiation, while others might probably be easily disproved by the defendants; but we can take no judicial notice of the likelihood of such a result at the trial. All of the material allegations of fact are admitted iby the demurrers. The sole question, therefore, is whether or not such facts are sufficient, when conclusively proved, to afford relief to the tax-payer.

The complaint alleges that the construction of the poles for electric lights would impair the value of the land along this street, including that owned by the plaintiffs. It further alleges that the contract price, namely, $164.25 per light, for lighting that avenue by electricity, “is unreasonable, excessive, and exorbitant, and largely in excess of the price at which said electricity ■could profitably be furnished to said city for lighting said street; that the said price of $164.25 is fixed pursuant to an agreement and combination of the persons and corporations, or alleged corporations, owning or having control of the different electric-light plants in said city of Buffalo, and is largely ■in excess of the value and of the cost of such light and for the price paid for lighting streets by electricity by other municipalities in the vicinity of Buffalo, and in other parts of the state of Hew York, and in other places in the United States; and that the cost of lighting Bouck avenue by electricity, as proposed and determined by the common council of said city, as aforesaid, will greatly exceed the cost of lighting said streets, as heretofore, by gas; that such proposed lighting of Bouck avenue by electricity will displace 49 lamps now used for lighting said street by gas, and that thereby the said city of Buffalo will lose the use, and will substantially lose the value, of said 49 lampposts and connections; that the said 49 lamp-posts and connections cost the city of Buffalo about the sum of $1,960; that the cost of lighting said Bouck avenue by electricity w'ith twelve electric lights, as proposed by the said resolution and determination of the common council, will be $1,971 per annum, and the cost of lighting the same portion of Bouck avenue by gas at the price proposed by the gas-light companies, and accepted by the city aforesaid, amounts to only the sum of $1,071.68 per year, making an increased annual expense of lighting the said portion of Bouck avenue by electricity with said twelve electric lights of $899.37.” There are other allegations to the effect that this avenue is now lighted by 60 lamps, at an expense per year of $27.81 per lamp; that such gas lighting is sufficient and economical, and such as is desired by a large majority of the people of Buffalo, and of tax-payers owning lands upon this avenue; “that lighting by gas diffuses the light upon the street much more equally and uniformly than lighting by electricity, and is better adapted to, and furnishes a better and more satisfactory light for, a residence street,” which Bouck avenue is shown to be exclusively. If all these allegations in the complaint were established as matters of fact, as they must be deemed to be under the demurrers, and for the purpose of this appeal, the judgment to be pronounced by the court would be unmistakable. They present a case literally within the language of the act above referred to. The interlocutory judgment appealed from should be affirmed, with costs. All concur.