Shepard agt. Wood and others.

city. Nor is there any authority conferred upon said board of supervisors to levy such tax by any of the statutes relating to the Central Park. The first section of the act of April 12, 1856, (Sess. L. 271,) authorizing a tax of about $5,000,000, declares "that the board of supervisors of the city and county of New-York, are hereby empowered, as soon as conveniently may be after the passage of this act, to order and cause to be raised by tax on the estates, real and personal, subject to taxation according to law, not exceeding $3,247,189 for the object and purposes," (particularly specified in the act "and for such other expenses as the mayor aldermen and commonalty ma be put to by law."

The latter clause of this section sustains no other meaning than the power to expend—and that not to the defendants, (supervisors, or Central Park commissioners,) but to another and a different corporation-the corporation of the city of New-York.

It is very doubtful whether the legislature have the unlimited right to clothe any subordinate body of men with power to tax without limit, and to expend at pleasure, without responsibility and without control-all which, it seems, is claimed by the defendants in this case under the act of April, 1856. The subject of taxation, in reference to the city of New-York and the state, considered.

New-York Special Term, Aug., 1856.

THE plaintiff, who is the counsel of the corporation of the city of New-York, and head of one of the departments of the city government, in his individual capacity, and as one of the tax-payers, as well on his own behalf as on behalf of all other corporators and tax-payers of this city, who may be affected by the subject of his complaint, complains that the defendant and his associates, who compose the board of supervisors of the city and county of New-York, did, on the application of certain persons, who claim to be commissioners of the Central Park, on the 11th day of June last,

"Resolve, That there shall be raised by tax on the estates, real and personal, of the freeholders, inhabitants and non-residents, assessed according to law, the sum of $200,000 for the improvement of the Central Park, the same to be expended under the direction of the commissioners of said Park."

That the said resolution was passed by a vote of fourteen in the affirmative and eight in the negative of said board of supervisors, and thus they threaten, or are about to pass further resolutions ordering and directing the comptroller to insert that sum

Shepard agt. Wood and others.

in the tax levy and warrant for the collection of the taxes of said city, in addition to the sum of $3,247,189, which the supervisors are empowered, by the act of April 12, 1856, to order to be raised.

That the supervisors claim, not only the power to levy and collect said tax, but authority to permit the same to be expended under the direction of Fernando Wood and Joseph S. Taylor, commissioners of the Central Park; and the plaintiff alleges that he is apprehensive that such resolution may be carried into effect, and prays for an injunction that the resolution may be declared void, and the injunction be made perpetual.

LORENZO B. SHEPARD, plaintiff, in person.

WHITING, Justice. When this complaint was presented to me, I granted a temporary injunction, and an order upon the defendants to show cause why it should not be continued until the final hearing.

I confess, I was at the time impressed with an idea that the majority of the board of supervisors would be able to show some semblance of authority on their part to uphold such a resolution, or that they would not have attempted to exercise so delicate and important a power.

If successful in adding that amount to the sum authorized to be raised by the legislature of the state, it might have jeoparded the collection of the legal tax.

With a city already burdened with sixteen millions of debt, with legislative authority to the board of supervisors to raise by tax about seven millions of dollars for the year 1856, the addition of such a sum upon the already overburdened tax-payers required, if unauthorized by law, the exercise of intellects sufficiently vigorous to declare, in the face of a free people, that the end should justify the means in the exercise of a doubtful power.

The calamitous consequences to the city in the loss of its credit, to arise out of its inability to meet its engagements by VOL. XIII.

4

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reason of its failure to collect the legal tax to defray the ordinary expenses of the government, should have induced the majority of the board of supervisors to have looked at the consequences to follow their act.

If the public moneys can be easily taken out of the public treasury, and squandered without a just responsibility; if a year's appropriation can be withdrawn by irresponsible heads of departments in six months, without a just accountability, it is time that the tax-payers should know that their money cannot be illegally taken from their pockets for any such purpose.

On the return day of the order, no person appeared on behalf of the defendants to sustain this bold and startling resolution.

My excuse for giving any reasons for continuing the injunction until the final hearing, must be found in the novelty of the effort of the majority of this board of supervisors.

The time I have been able to devote to the question, has led me to the conclusion that any tax-payer, on behalf of himself and other tax-payers, may ask the interposition of this court upon a proper case, whenever his or their interests are likely to be injuriously affected by any person or corporation, or other body of persons, acting or pretending to act by lawful authority, when they assume power over property which the law does not give them, when they go beyond the line of their authority, and infringe or violate the rights of others, or when they attempt, or are about to exceed their powers by levying a tax, or by misapplying their funds, or by applying their funds or their own credit to an object beyond their authority, whenever the purpose of such a body, if carried out, would constitute a breach of the law or of their duty-that the appropriate mode of relief in any such case is by injunction. The exercise of jurisdiction in such case is wholesome, whenever it would be prejudicial to the interests of all with whose property the managers of such a power might choose to interfere; and it would be a strange anomaly in the law if such a jurisdiction were not continually open, and ready to exercise such a power to keep such bodies within their legitimate limits. (Agar agt. The Regent's Canal

Shepard agt. Wood and others.

Company, Cooper's Eq. Cases, 77; River Dun Navigation Company agt. Midland Railway Company, 1 Railway Cases, 135; Frewer agt. Lewis, 4 Mylne & Craig, 249; Attorney-General agt. Forbes, 2 Mylne & Craig, 123; Davis agt. The Mayor, &c., 1 Duer, 451; Roosevelt agt. Varnum et al., 12 How. Pr. R. 469; The Chemical Bank agt. The Mayor, &c., id. 477.)

The power of taxing the people and their property is essential to the very existence of government. It may legitimately be exercised by every state on the objects to which it is applicable, to the utmost extent to which the government may choose to carry it. The only security against the abuse of it is to be found, if anywhere, in the structure of the government itself. It exists in the power to make the laws. The legislature, in imposing it, acts upon its constituents. Here, it was supposed, lay the security against excessive taxation.

As the expenses of the state could not be limited, the people have not, in their fundamental law, prescribed any limit to the exercise of this right.

They have chosen to rest it, if not on the purity or patriotism, at least on the interest of the legislator, and on the influence of the constituents over the representative, to guard them against abuse.

The right to lay and collect a tax is inherent in, and one of the highest attributes of, the sovereignty of a state, and is coextensive to that to which it is an incident. (M'Cullough agt. The State of Maryland, 4 Wheaton, 316; Osgood agt. Blake, 1 Foster, 562; People ex rel. Griffin agt. The Mayor of Brooklyn, 4 Com. 419.)

This power to make the laws is legislative. The tax must be imposed and the means to collect it given by the laws; they must fix the amount to be collected, and define the mode in which it shall be rated, and the things subjected to it.

In accordance with this view of the subject, the legislature, with whom the taxing power exclusively belongs, has uniformly imposed them, and authorized and provided the means for their collection, from the earliest history of the state to the present time.

Shepard agt. Wood and others.

Whether they have the power to delegate this authority to another body, it is not now necessary to inquire. The question now is, have they authorized the board of supervisors to levy this tax of $200,000?

A board of supervisors is a quasi corporation. (Jansen agt. Ostrander, 6 Cow. 671.) They have no other, or more power than such as is given them by the statute which creates them; or such as may be conferred upon them by laws. (Jackson agt. Hartwell, 8 Johns. R. 422; Jackson agt. Corry, id. 385.)

The mayor, recorder and aldermen of the city of New-York are declared to be the supervisors of the city and county of NewYork. (1 R. S., 3d ed., p. 22, § 32.)

The powers conferred upon this board, under the general law creating them, is the same as that conferred upon the board of supervisors in the different counties of this state. These are, 1. To make such orders as they may deem expedient concerning the corporate property.

2. To examine, settle and allow all accounts chargeable against the county, and to direct the raising of such sums as may be necessary to defray the same.

3. To audit the accounts of town officers and other persons against their respective towns, and to direct the raising of such sums as may be necessary to defray the same.

4. To perform any other duties which may be enjoined on them by any law of this state.

5. To cause to be levied, collected and paid to the treasurer of the county, such sums of money as may be necessary to construct and repair bridges therein, and to prescribe upon what plan, and in what manner, the moneys to be raised shall be expended.

6. To apportion the taxes to be raised among the several towns and wards of their county as shall seem to them to be equitable and just.

7. To cause to be levied, collected and paid all such sums of money as they shall deem necessary for rebuilding or repairing the court-house or jail of the county, or for building, rebuilding or repairing the clerk's office of the county, and to prescribe