Gray v. City of Brooklyn

(dissenting):

Without passing upon the merits, the injunction should be continued until the final hearing and determination of the action. The order must, therefore, be affirmed without costs.

Order continuing injunction reversed, with costs and disbursements.

By section 26 of title 2 of the charter of the city of Brooklyn, the common council are empowered “ to establish markets, make parks, build bridges, and to make other improvements for the use of said city, and to make loans and issue bonds therefor as provided by law.” The heading of this title is “ Legislative department,” and its only office is to define and enumerate the legislative powers of the common council, and to specify the restrictions imposed on the exercise thereof. By title 18 of the charter, which is “ entitled ” of assessments for local improvements and of street openings, “ the common council are empowered” to open, close, extend, widen, regulate, grade, pave, regrade and repave roads, streets, lanes and avenues, and cause public squares and parks to be opened, regulated, ornamented and perfected in the manner thereinafter provided, and generally to make such other improvements in and about such streets, avenues and squares as the public wants and convenience shall require, upon a petition of a majority of the property owners, or of the owners of a majority of the property to be affected, or b_y a three-fourths vote of the board of aldermen, and the consent of the mayor.” This title provides that the expense of all such improvements shall be assessed on the property benefited thereby in proportion to the amount of such benefit, and prescribes the proceedings for laying out a district of assessment, and for the levying and collecting of the sums assessed. It also provides that in case a remonstrance against the proposed improvement signed by a majority of the property owners, or of the owners of a majority of the property to -be affected, within the district of assessment, shall be presented to the common council on or before a day designated, they shall not allow the said improvement to be made or proceed further therein.

*634The common council were proceeding to build a bridge across the Gowanus canal, where it intersects Ninth street, when the work was arrested by the injunction order granted in this case.. The plaintiff’s property fronts on Ninth street, and'is also bounded by the canal. The construction of the bridge requires, as an incident, the raising of the grade of Ninth street about four feet, in order tc form a suitable approach to the same, and this it is alleged will injuriously affect the plaintiff’s property.

The question is, whether the improvement under consideration is an exercise of the power granted by title 18 of the charter. If it is, it is illegal for the reason that none of the conditions on which that power depends have been performed; and as the plaintiff is the owner of the fee of one-half of the street, any unauthorized alteration of the grade thereof which w’ould injuriously affect the residue of his property would amount to a private nuisance which a court of equity may properly restrain. Municipal corporations are created for public purposes only, and are in fact mere agencies of government. While therefore they are, like other agencies, confined within the limits of the powers expressly granted, and such as are necessary to the exercise of their express powers, yet in construing the language in which the various powers are granted regard must be had to the public purpose involved in each. For example, title 2, subdivision 4 of the charter grants the police power of regulating all matters connected with all parks, places and streets of the city. That is very different fr.um the power granted, in similar language, in section 1 of title 18 of the charter, and is not affected by any of the conditions annexed to the exercise of the latter power. Many similar illustrations might be given of the rule of construction alluded to, but one is as good as any greater number would be.

The power to build bridges is granted in general terms. It includes, of necessity, the power to make such approaches to them as are necessary to the convenient use of the same, for it must be presumed that the legislature did not intend that a bridge should be constructed which could not be used for lack of such approaches. They imposed no restriction upon thegrant of the power to build this bridge, but left the whole subject to the discreiion of the common council, a body chosen for that and other like purposes and clothed *635with the responsibility of performing the duty for the best interests of the public. It is required to be performed at the expense of the entire city. Although it will require an elevation of the g’rade of a part of Ninth street in order to form the requisite approaches to the bridge, yet, we think, it is not an exercise of the power to regrade a street conferred by title 18. The change made in the approaches to the bridge is a mere incident to the power to build a bridge, which is essentially a different one from the power to regrade a street, and the power to build a bridge cannot be annulled or impaired because one of its incidents involves an act which is also an ingredient of another and distinct power and can be done under the latter power only after certain conditions have been complied with. In the exercise of the latter power the common council acts as the quasi agent of the persons assessed for the improvement— hence the conditions. In the former they act for the public at large — hence such conditions would be incompatible with the object of the power. In other words the conditions apply only to a local improvement, the expense of which is to be defrayed by the persons benefited, and the building of the bridge is not such an improvement.

We are of opinion, therefore, that the order appealed from should be reversed, with ten dollars costs and disbursements. •