The opinion
The question involved in this case is, whether an act of the legislature making the city or county in which property shall be destroyed or injured in consequence of any mob or riot, liable to an action by the party injured for his damages.
That such a law, applicable to counties, may be passed, and that the law may authorize supervisors to raise the necessary sums to make such payments, I have no doubt. It is not, then, taking private property without compensation, but the mere power of the legislature, which has been repeatedly sanctioned, to compel the payment by taxation of moneys, which in their judgment are properly chargeable on the inhabitants so taxed. ( Wolfe v. The Supervisors of Richmond County, 11 Abb., 270 .) But a very different question arises as to a municipal corporation. They are not only the holders of powers and franchises bestowed upon them by the legislature, but they hold property derived from other sources than the legislature, and which they hold by the same right and title, and subject only to the same liability as private individuals. Such property cannot be taken from them, for private use, by any law; nor can it be taken for public use, without compensation. Large amounts of property are held by the corporation of the city of New York, by such a title, and the income of such property, by this act, is made liable to the payment of these claims. Various laws have been passed by the legislature prohibiting the corporation from using the moneys, raised by taxation, from being used for any other purpose than specially designated by the *Page 207
act authorizing the levying the tax. And yet, this law makes it the duty of the treasurer of the city to pay the amount of any judgment recovered against the city, and to charge the amount paid to the city. Clearly, the treasurer would not be bound to pay if he had no funds in his possession belonging to the city. It is equally clear that he could not take moneys, raised by law for other purposes, and apply them to this payment. Take, for instance, the moneys raised by tax for lamps, or the support of the poor, or paving of the streets, or any other specific purpose. The laws give the treasurer no power over the funds of the city, except to pay on the draft of the comptroller and other officers. Suppose he should, in compliance with this law, pay the amounts of losses sustained by the riot, which are said to exceed one million of dollars, how is the business of the city to be carried on? Ample provision had been made by law for these purposes, and yet, if this law is to be sustained, those moneys must be applied to the payment of the riot claims, and the city left without means for the ordinary wants of the city, and with strict legal provisions against incurring any new indebtedness, unless authorized by the legislature. Under such provisions nothing would remain but the application of the private property of the corporation to the payment of these claims. Holding these views, I have heretofore held that the legislature could not impose on the corporation the obligation to pay moneys without providing means, either by taxation or by a release of the moneys raised by taxation from the special purposes to which they were applied; and, that when the question arose as to their liability to pay money accruing from their private property, they were entitled to the same rights as individuals, and were not bound to hold such property subject to the will of the legislature. ( Green v. The Mayor, 5 Abb., 503 ; People v. Haws, 37 Barb., 440 .) The case of Bailey v. The Mayor, c., of New York ( 3 Hill, 531 ), was decided upon this theory. NELSON, Ch. J., says, "If the grant was for purposes of private advantage and emolument, though the public may derive a common benefit from it, the corporation quoad hoc, *Page 208
is to be regarded as a private company." And again, "It is upon the like distinction that municipal corporations, in their private character, as owners and occupiers of lands and houses, are regarded in the same light as individual owners and occupiers, and dealt with accordingly.
Nor do I think the provision of this statute, which says, "Whenever any final judgment shall be recovered against any such city or county in any such action, the treasurer of said city or county shall, upon the production and filing in his office a certified copy of the judgment roll, pay the amount of such judgment to the party or parties entitled thereto, and charge the amount thus paid to said city or county," relieves the objection before stated.
I consider this provision not as a limitation, but as an addition to the means which the plaintiff would otherwise possess of collecting his judgment. As to a county it would probably be the only mode of collecting the judgment, viz., to make it a lien entitled to payment out of the moneys in the hands of the treasurer. It would be no answer to an application for a mandamus to direct the treasurer to pay the judgment, for him to reply that the money in his hands was wanted for other purposes for which it had been raised by tax. The direction is positive for him to pay, and no provision is made for raising the means. But whether it would or not be conclusive, if not paid it is still a judgment with all its incidents. There is no limitation in the statute as to the mode of its collections. By the statute the city is made liable to an action for the damages sustained, and such actions are to be conducted in the same manner as other actions. I see no reason why executions may not be issued in like manner, and be levied upon the property of the corporation when a judgment is recovered against them.
I do not, however, propose to discuss these questions at length, as I understand the views heretofore expressed by this court, on the liability of the corporation of New York in regard to its property, as adverse to the views I entertain. I desire thus briefly to express my open opinion as to the power of the legislature to interfere with the private property of the *Page 209
corporation of the city of New York, or to impose upon it obligations to pay money without giving it corresponding powers to raise the same by taxation, or to borrow it by a loan. I do not wish to be understood as expressing any opinion adverse to the validity of this statute, so far as it applies to the county or the power of the legislature to make the amount recovered a county charge, to be raised by taxation or loan, but simply as to the right of the legislature to impose such liabilities upon the corporation of the city of New York so as to bind their property for the payment of the recovery.
My conclusion is, that the judgment of the General Term should be reversed, and that of the Special Term affirmed.
Judgment affirmed. *Page 210