Spitzer v. Village of Fulton

This action was to recover one thousand dollars which the plaintiffs had deposited with the defendant as earnest money to secure the performance by them of á bid or contract for the purchase of one hundred and fifteen bonds of the par value of one thousand dollars each, to be issued by it for the purpose of securing the money with which to construct a system of water works within its boundaries for the use of the defendant and its inhabitants. The bonds were advertised for sale, and each bidder was.required to deposit a certified check for one thousand dollars. The check of the successful bidder was to be applied on account of the purchase price of the bonds, or to be retained by the defendant as liquidated damages in case the purchaser should fail to comply with his bid. The plaintiffs made a written bid for the purchase of the bonds, and delivered to the treasurer of the defendant a cashier’s check for one thousand dollars, to be applied on the purchase price of the bonds if awarded to them. The bonds were thus awarded. They were tendered to the plaintiffs, but they refused to accept them, and notified the defendant that they elected to rescind their contract. They then made a demand upon the fiscal officer of the defendant for the amount thus deposited, which was refused, and this action was commenced.

The defendant demurred to the complaint upon the ground that it appears upon its face that it does not state facts sufficient to constitute a cause of action. The demurrer was sustained at Special Term and unanimously affirmed by the Appellate Division.

That the defendant was authorized by chapter 269 of the

The provisions of the statute of 1898, which the plaintiffs claim rendered it unconstitutional, are as follows : “ A voter at a village election must possess the following qualifications: 1. To entitle him to vote for an officer, he must be qualified to vote at a town meeting of the town of Volney, and must have resided in the village thirty days next preceding such election. 2. To entitle him to vote upon a proposition, he must be entitled to vote for an officer, and lie or his wife must also be the owner of property in the village, assessed Upon the last preceding assessment roll thereof.” The manifest purpose of these provisions was to define the qualifications of electors who should be authorized to vote at the various municipal elections of the defendant for the election of its public officers, and also to define the qualifications they must possess to vote upon the various propositions which should arise as to the business or financial affairs of the municipality. To vote for public officers, they were required to possess only the qualifications required of an elector of the town in which the defendant corporation was situated, which were only such as an elector was required to possess under the provisions of article two. But when a proposition was presented to be

The contention of the plaintiffs is that the provisions of chapter 269 contain a restriction upon the provisions of article two as to the right to vote for elective officers and upon all questions which may be submitted to the vote of the people, and, hence, are violative of its provisions. The obvious purpose of that article was to prescribe the general qualifications that voters throughout the state were required to possess to authorize them to vote for public officers or upon public questions relating to general governmental affairs. But we are of the opinion that that article was not intended to define the qualifications of voters upon questions relating to the financial interests or "private affairs of the various cities or incorporated villages of the state, especially when, as in this case, it relates to borrowing money or contracting debts. This becomes manifest when we also consider section 1 of article 12 of the Constitution which provides: “ It shall be the duty of the Legislature to provide for the organization of cities and incorporated villages, and to restrict their power of taxation, assessment, borrowing money, contracting debts, and loaning their credit, so as to prevent abuses in assessments, and in contracting debt by such municipal corporations.” Article two must be construed in connection with article twelve. When read together, we have two provisions of the Constitution which relate to this question. The first was intended merely to define the general qualifications of voters for elective officers or upon questions which may be submitted to the vote of the people which affect the public affairs of the state; the second, a provision by which it is made the duty of the legislature to protect the taxpayers of every city and village in the state and to restrict their power of taxation, assessment, borrowing money and contracting debts, so as to prevent any abuse thereby. One is general, relating to the whole state. The other is in effect local, relating only to the cities and villages

When we consider all the provisions of the Constitution bearing upon this subject, we feel assured that none of the changes or amendments of that instrument was intended to alter or affect the power of the legislature to restrict the right of villages to borrow money or contract debts for unusual or extraordinary expenditures to cases where a majority of the taxpaying, electors should, by their votes, consent thereto. It was the obvious intention of 'its framers to provide that any abuses of that character should be prevented by the legisla

The judgment and order should be affirmed, with costs.

Parker, Ch. J., Gray, Bartlett, Martin, Cullen and Werner, JJ., concur ; Haight, J., absent.

Judgment and order affirmed.