New-York tribune., 1878-03-30
CITY APPROPRIATIONS.
THE POWER TO FIX THEIR AMOUNTS.

coNsHruTIoNAITy OF THE BOARD OF AppoRTfoS.
MENr DISPUTED IN Mr.. TowNsEND's SUIT.
The case of John j. Townsend against the
Mayor OF New-York, which tried in the Special
Term OF the Supreme Court before Judge Van Brunt,
yesterday, acquired particular utert because OF the
question involvedthe cOnsti.utionality OF the pro-
visions Of the Charter OF 1873, creating the Board OF
Apportonment The legality Of the parts OF the tax
levy Of 1875 which determined by statute, such
the State tax the interest the city debt etc.
not disputed by the plaintiff But the validity OF the
appropriations made by the authority Of the Board OF
AppOrucnment In its discretion TO fix amounts.
denied The tax levy and the action OF the Board Of
Apportonment with reference to IL, submitted
proof The Corporation Counsel put In for the city
statement showing that of the entire tax levy OF 1870
only about SS0OC,000 ont OF nearly f3l,0O0,0oO was
discretionary with the Board OF Apportonment
Mr. Townsend held In bis arguments that the establish
ment OF body possessed OF powers IKE those of the
Board of Apportonmeut was inconsistent VITA tDe
principles which our government was founded: and
that violated sDecnc provisions OF me Con-
stitution Article yIIt section o OF the Constitution,
cities and therefore secured The right OF taxaton e
be restricted But there restriction upon the
Board of Apportoument the cnaiter creating the board
was unconstitutional Article ILL.,, section 23, OF the Con-
stutOn provided that the Legislature, besides the pro
visions of general laws should confer upon the Boards
Supervisors OF counties OF the State such further
powers OF local administration IL might deem exped
ent. This section Mr Townsend argued recognized tho
powers then existing and thus the existing powers OK
the Board OF Supervisors secured to them being
recognized as part Of the governmental system
CORPORATION Counsel Whitney answered these argu-
meus some length In regard to the consiutonafty
Of the creation OF the board he presented decisions on
the point that laws before being declared nnconst,
tona must be found 10 violate expressly declared
or ceary implied provision OF me Consnut9h 10 M ne a sso
had repeatedly held that article VIII. section %
Of the Constitution not restriction upon the
powers of the Legislature dd prevent the Legis-
ature from conieIng new powers OF taxation upon to
was the sole Judge OF what restrictions Should
DO imposed upon taxation by municipai
of the Legislature. Mr.. Whitney argued further that
express Of the Legislature restricted the Board OF
Apportonmeni, making particular provisions as TO the
amounts be appropriated Tor many purposes. The
boa board had no discretion oyr @ s22oooooo OF the SSo-
The board moreover, restricted in the following
PARTICULARS: IL could only appropriate such amounts 40
required tor the actual expenses or he city gov
eminent for the ensuing year; It's apgropriasons we're
& ~ pT and tbe Boad of Enda9ion GRose es,iaates
also to be furnished to the Board OF Aldermen aud
published in me Chy Record; the Board OF Aldermen
lad the right suggest changes in the amounts appro-
prated the board required 10 consider the sdSSeS
lions OF the Aldermen before making its final estimate,
and the estimate could only be adopted by the unani'
vote or the board.
Concerning article H. section 23 the Constitution,
the Corporation Counsel enumerated several reasons
why under its provisions the law creating the Board or
AppOrtionment could not be considered
They were as follows: This section was adopted in
1875 and therefore not IN force when the Board OK
Apportionnent was created IN 1913 the Court OF Ap-
pels bad decided, and the Legislature had since reccg
IIzed the fact thaG when this amendment to the Com
adopted there Board OF Supervisors
IN NowY0r5; this provision leaves IT entirely In the
discretion OF the Legislature what further powers OF
local administration shall be conferred and that dcre-
ton could not be reviewed by The courts the court
could nandamus 10 compel the Legislature to
confer additional powers the Board OF Supervisors
the Legislature had always been conceded 10 nave
the trained power 20 delegate the right OF local
taxation II must he delegated TO some officers or boards
OF cities and the Les stature had discretion in deciding
as what board or officers shall receive tine power.
That the Legislature could not delegate legislative
powers, was Il proposition, Mr. Whitney contended,
which could not be sustained. such powers had frc-
quen,ly been conferred upon the Dock Department,
the Park Department and the Health Department The
Court ~ Appesls had recently sustained the ordinances
the Health Department. The Board OF Estimate and
AppOrtionuent, asurged. was representative body
Tne Mayor and the Board OF Aldermen were elected by
the people city, and the Controller and President
OF tie Department OF Taxes were appointed by thu
elected May or aLd Aldermen.
la conclusion the Corporation Counsel sad that tho
action Of the Board Estimate aud ApporOnment in
past yeafs bad sAOWn the wisdom OF the legislature in
Creating the board Tie amounts appropriated by tho
board during the last Ave years Lad been tess Dy $4,000
600 than the suggested by the Board OF Alder
men. Decision reserved.