(dissenting):
I do not agree with the conclusions of my associates, as expressed in the opinion of Mr. Justice Hirschberg-.
The plaintiff .sued to recover the amount of interest coupons upon *470bonds of the town of Jamaica, issued in March, 1895.- The bonds were part of an amount of $40,000 in bonds issued to defray the expense incurred by the town in acquiring certain lands adjacent to the town hall. The question presented for decision is whether the town had power to issue the bonds. It does not require a consideration of the ultimate liability of the town for the amount expended in .the acquisition of the land's.
In 1864 the Legislature passed “An act to provide for the erection of a town hall in the town of Jamaica, in the county of. (Queens ” (Chap. 147). The 1st section authorized the "supervisors, in conjunction with the four commissioners named in the act, to ■“borrow on the faith and credit” of the town, for the purpose of the act, the sum of $30,000, and to execute bonds therefor payable in twelve annual installments consecutively. The 2d section ■provided for the purchase of the site for and erection of the hall. The 3d section related to the custody of the hall and the title thereto. The 6th section provided for the yearly raising by tax, as other taxes are levied, the sum necessary to pay the annual installments and the interest.
In 1894 section 3 was amended so as to authorize the town board •to “ acquire, take and hold in the name of the town and for the benefit of the town,, by purchase or condemnation, such adjacent lands for public uses and purposes as the said board may deem necessary or proper, and the expense thereof shall be deemed a town charge and shall be levied and collected the same as other town' charges.” (Laws of 1894, chap. 146.)
The board of supervisors in 1895, acting under the amended section, passed a resolution authorizing the town to borrow the sum of $40,000, upon its faith and credit, for the purpose of acquiring the adjacent lands, etc., and to issue the bonds in question; and the plaintiff purchased one-half thereof. The city, succeeding under the Greater New York charter to the liabilities of the town, now contends that the town had no power, express or implied, to issue the bonds for the purpose of acquiring the lands in question.
The plaintiff contends that the board .of supervisors, under the "County Law (Í R. S. [9th ed.] 597), had power to authorize the issue of the bonds, and it is this question alone which is raised by the present appeal. "
*471Among the general powers conferred upon the hoard of supervisors by section 12, subdivision 6, of the County Law, is the power to “ authorize a town in their county to borrow money for town uses and purposes on its credit and ..issue its obligations therefor when and in the manner authorized by law.”
It is well settled that a town possesses only such powers as are ■expressly conferred by statute or necessarily implied. In Wells v. Town of Salina (119 N. Y. 280), an epitome of the law upon this subject, the court, after a careful statement of the authorities, said (p. 287): “ Towns and other municipal corporations are organized for governmental purposes, and their powers are limited and defined by the statutes under which they are constituted. They possess only such powers as are expressly conferred or necessarily implied. They are clothed with the power of taxation, and can thus raise all the money needed for ordinary municipal purposes, and until the money can thus be raised, as it can be at brief intervals, experience has demonstrated their ability to obtain upon credit all the materials and services needed without a resort to .loans of money upon credit. It is the general, if not the universal law of this country and of England, that municipalities are not empowered to borrow money for municipal purposes, unless expressly authorized to do so by statute, ■or, in the absence of a statute, unless the power is necessarily implied from some special duty imposed, for the discharge of which the -power to borrow is not only convenient, but necessary.”
In part I, chapter 16, title 1, article 1 of the Revised Statutes (8th ed. vol. 2, p. 1348), now repealed by the Highway Law (Laws of 1890, chap. 568), the board of supervisors, upon the testament of the highway commissioners, that it is necessary to raise moneys for improvements to the highways, was authorized to cause the amount to be “ assessed, levied and collected * * * in the same manner as other town charges; ” and in the Town of Salina case the court interpreted the words “assessed, levied and collected,” and declared that they, like the word “ raised,” did not authorize the town to borrow money instead of raising it by taxes, saying (pp. 290, ■291): “ It is the policy of the laws that town charges shall be met by annual recurring taxation, and thus extravagance and improvidence are in some degree checked, as those who create town charges or are (sic) the taxpayers when they arise, must bear the burden of *472taxation to meet them. It is quite easy for the taxpayers of .to-day to create a debt which they are not to feel and which the taxpayers: of the future are to discharge. The system of laws - relating to-towns requires that all bills for moneys expended or materials furnished, or services rendered to the town, shall be verified and presented to the board of town auditors and audited by them, and then enforced by warrants of the board of supervisors against the taxpayers of the town. This whole system would be subverted if towns could borrow money upon credit to meet town charges. Then the money would have to be repaid whether the town had had the benefit thereof or not, and the wise provisions of the statutes to-secure economy and safety by the audit of accounts would be entirely frustrated.”
I co.me then to the question as to what power the board of supervisors has under section 12, subdivision 6, of the County Law, above-quoted. Manifestly, its power to authorize the town to borrow money and issue obligations therefor is by the language limited to-doing this “in the manner authorized by law.” The manner-authorized' by law as to the bonds in question must be found alone-in the amendment of the original act passed in 1894.
It is a familiar rule of construction of an amended statute that-the amendment and the original must, for purposes subsequent to-the amendment, be construed as one statute. They are regarded as-constituting but one enactment, so that no portion of either is to be left without effect if it can be made operative without wresting the-words used by the Legislature from their appropriate meaning.. (Endl. Lnterp. Stat. § 40.)
There are two subjects in the amended act, one relating to the-town hall, the other relating to the adjacent lands. The act contains express authority for the issue of bonds to pay for-the town hall, but when the adjacent lands are referred to, the amended act does not provide for the issue of bonds, but requires that “ the-expense thereof shall be deemed a town charge and shall be levied and collected the same as other town charges.”
This differentiation, taken in connection with the opinion in the-SaUna case, makes it clear to my mind that the Legislature did not intend to authorize the issue of bonds for the expense of the-adjacent lands, but intended that this money should be raised by *473taxation at the same time with other expenses of the town, that is, in the annual tax levy, and not by the issue of bonds. Any other conclusion defeats the plain language of the amended act.
Hubbard v. Sadler (104 N. Y. 223), cited by the plaintiff’s counsel, is in no way inconsistent with the principles stated. In that case the statute under consideration gave to the supervisors express power to issue bonds, and the court held that the board acted within the scope of the statute in issuing the bonds. Ho such authority is given by the amended statute before us.
I am of opinion that the judgment should be reversed and judgment entered for the defendant.
Judgment affirmed, with costs.