In re Village of Le Roy

The village of Le Roy is a municipal corporation in Genesee county, in this state. On June 5, 1897, two of the three water and light commissioners of said village made a petition to this court on behalf and in the name of said village, for the purpose of acquiring, by condemnation, the plant and property of the Le Roy Gaslight Company, a domestic corporation, then engaged in furnishing to said village and its inhabitants gas and electric light. Such proceedings upon said petition were thereupon had that afterwards, and on June 16, 1897, the said Le Roy Gaslight Company being then and there present in court, and not objecting thereto, an order was made by this court, which in terms adjudged that the condemnation of the property then sought to be acquired was necessary for a public use, and that the village was entitled to take and hold the said property for the public use specified in said petition upon making compensation therefor, and three commissioners and appraisers were appointed to ascertain and appraise the compensation to be made for the property then sought to be taken. The commissioners proceeded

The proceedings in question were instituted on March 11, 1897, when the water and light commissioners signed and presented to the board of trustees of the village, at a special meeting then being held "by them, a communication in the words and figures following:

“To the Trustees of the Village of Le Roy, Genesee County, New York—Gentlemen: We, the undersigned water and light commissioners of the village of Le Roy, having heretofore resolved ourselves into a "board of water and light commissioners for said village, in the manner provided by law, and believing it is for the best interest of our taxpayers and citizens that this village should establish and maintain its own lighting system, respectfully1 request your honorable board to call a special election of the voters .and taxpayers of the village of Le Roy to vote upon the question of taxation of the citizens of said village for the debt and expenses to be incurred by the water and light commissioners in purchasing, constructing, establishing, and maintaining a lighting system and plant for said village of sufficient capacity to supply said village and the inhabitants thereof with light for municipal purposes, in the manner provided by chapter 680 of the Laws of 1894.”

The said board of trustees thereupon, at its said meeting, adopted a resolution in the words and figures following:

“Resolved, that a special meeting of the voters and taxpayers of the village of Le Roy, N. Y., whose names appear on the last assessment roll of said village, or who are qualified to vote on the question of taxation for the village lighting debt and expenses, be, and the same is hereby, called for the 30th day of March, 1897, at the village hall in said village, at which place the polls will be opened at 9 o’clock a. m., and shall continue open without interruption until 4 o’clock p. m., at which time they shall be closed, at which time and place the question will be submitted (by ballot) whether the taxes in this act authorized for the purposes aforesaid shall be levied and collected from the village as in said act provided.”

The above application and resolution, preceded by the words, “Notice of Special Tax Meeting to Vote upon the Question of Village Lighting System,” and a record of the special meeting held by the board of trustees March 11, 1897, at which the application was considered, were published in the Le Roy Gazette (a newspaper published in the village once a week) for two weeks, as and for a notice of the said "election so as aforesaid ordered to be held by said trustees.

On March 30,1897, an election was held in and for the said village,

(Notice to voters: For an affirmative vote upon any question submitted upon this ballot, make a cross [X] mark in the square after the word “Yes." .For a negative vote make a similar mark in the square following the word “No.” Any mark or erasure made on this ballot, except as above indicated, makes this ballot void, and it cannot be counted. Úse only a pencil having black lead.)

i—i Shall the taxes authorized in chapter 680 of the Laws of 1894. enI_1 titled, “An act to authorize the villages of the state of New York to

furnish electric light or gas light to the inhabitants thereof,” for the i—i purpose specified in said act, be levied and collected from the village "" u" I_I of Le Roy, New York, as in said act provided.

[Indorsed on the back of said ballot.]

[Consecutive Number.]

Official Ballot for the Village of Le Roy, For and Against a Lighting System. March 30, 1897. Question submitted. Wm. R. Crofoot,

Clerk of the Village of Le Roy.

Cross marks were made on a majority of the ballots cast, within the voting space or square opposite the word “Yes” on the ballot.

The authority for taking and prosecuting the condemnation proceeding was chapter 680 of the Laws of 1894, which provides that the board of water commissioners of any village having a waterworks system belonging to the village shall have the power to establish a lighting system within said village, for the purpose of supplying light by means of electricity, gas, or other approved system to the inhabitants of said village, and authorizes such water commissioners to issue bonds or other certificates of indebtedness upon the faith and credit of said village, to procure the necessary funds for establishing such lighting system under certain conditions, and to establish and maintain such lighting system to supply the inhabitants with light, and to collect rentals therefor; that the commissioners, upon establishing such a lighting system, may' then arrange with the trustees of the village for the public lighting of such village, and the-trustees may then levy and collect a tax to pay any deficiency in-, rentals for the expense of such public lighting. The statute prohibits the establishment of a lighting system until after the proposition to establish it shall have been submitted to a popular vote at an annual or special election, and commands that at such election the ballots shall be “For a Lighting System,” or “Against a Lighting System.” If a majority of votes cast be in favor of a lighting system, the commissioners may proceed to establish the same; otherwise, they shall not. Where, as in this case, a lighting system had. already been established by private persons for the purpose of furnishing light to the village and its inhabitants, under a franchise or-contract granted or made pursuant to law, and was then engaged in furnishing such light, and a majority of the voters of such village-shall have decided to establish a lighting system, the board of water and light commissioners shall proceed to acquire by condemnation.

This motion is based upon the claim that the judgment of November 18, 1897, and all the proceedings which led up to the pronouncing of that judgment, are void for noncompliance with the provisions of the statute upon which such proceedings were based. The initial act on the part of the water commissioners was their communication.

For reasons already given, neither the request of the commissioners of March 10, 1897, nor the resolution of the trustees therein of March 11, 1897, correctly or approximately describes the object or purpose of the election held March 30, 1897, according to the requirements of the statute. The sole object and purpose of such an election was to enable those electors entitled to vote upon the question to say whether or not the village of Le Roy should or should not acquire a lighting system, without any reference whatever to the price to be paid or the way in which it should be paid. Notwithstanding this misdescription of the statutory object and purpose of the special election, it would perhaps be harmless if it had been followed by an actual vote upon the question authorized by the statute to be submitted to them by the voters of the village; but a comparison of the provisions of the statute with the form of the ballot used at the election is conclusive evidence that the question so authorized was not submitted: The provision of the statute is plain, and admits of no doubt as to its meaning. It is simply whether or not the village shall establish or acquire a lighting plant. That is the full extent to which the electors are entitled to participate in the proceedings. The proposition or question submitted did not in the remotest way refer to the question or proposition authorized by the statute, but, by its terms, assumes that the act of 1894 authorizes and regulates the levying of taxes for the purpose of paying for a lighting plant, and asks the voters to say whether such taxes shall be levied and collected from the village; whereas the act does not con

It is apparent that, in attempting to comply with the act of 1894 in this proceeding, the water commissioners and trustees of Le Boy followed with more or less accuracy certain formalities prescribed by chapter 181 of the Laws of 1875, in points where there was no relation between the two statutes. Hie scheme of the act of 1875 was much broader and more comprehensive than that of the act of 1894. By the act of 1875, the “authorities” of a village were defined to be the board of trustees thereof. It authorized the trustees to organize themselves as a board of water commissioners. It authorized a board of water commissioners thus organized to purchase or acquire by condemnation any lands within the county, and erect thereon and operate .a water plant for the purpose of supplying the village with water. It authorized and required said board to borrow from time to time, upon the credit of the village, the money necessary for that purpose, and to issue bonds, certificates, or other obligations signed by them as such commissioners, and make them valid against the village. It required said board to establish rates for water, and to collect the same, and that the receipt be applied to the payment of interest upon the money borrowed, and the creation of a sinking fund for the payment of the principal. If the receipts proved inadequate, the board of trustees was authorized and required to cause the deficiency to be .assessed, levied, and collected, and properly applied. The act made the board of water commissioners a quasi corporation, which could contract and sue and be sued as such. The act of 1875 further provided (in section 21) that, at any time after its passage, a meeting of the electors of any village might be called by its board of trustees upon notice published for two weeks in one or more weekly newspapers, at which the question was to be submitted whether the taxes .authorized by the act for the purposes named in it should be levied and collected from the village as in the act provided; and it prohibited the board of water commissioners from proceeding with any duties under the act, unless the majority of voters and taxpayers .should vote at such meeting in favor of such taxes; that the vote

The next question which naturally arises in the consideration of this case is as to the effect upon the proceedings attacked of such noncompliance with the statute. It is claimed by the counsel who makes this motion that the court never acquired jurisdiction of the subject-matter of those proceedings, and that, therefore, they were, and that the judgment entered upon them is, void. The’ failure to follow the statute originally, furnished a complete defense at the time to the proceedings if it had been invoked for that purpose. The right conferred upon these water and light commissioners to acquire a lighting plant was not absolute, but was conditioned upon a previous popular vote, sanctioning and authorizing it. “Permitting the voters of a municipality to decide upon questions of local interest or expediency, such as that of supplying its own light and water, seems to be conformable to those ideas of self-government and self-regulation by the people concerned which lie at the basis, not only of our municipalities, but of our institutions.” The trend of legislation, as evidenced by the village law now in force, is in accordance, with this doctrine. A sound public policy demands that constitutional and statutory provisions designed to secure to and protect the people concerned -in the enjoyment of Such rights and privileges shall be liberally construed in their favor. For that reason, the popular vote provided for in chapter 680 of the Laws of 1894, under which this proceeding was. prosecuted, was a condition precedent to the right and power of the water and light commissioners to institute it; and, for the same reason, it was not competent for the village authorities to waive a compliance with the. statute in that respect.

As between the parties to this proceeding, the doctrine of estoppel, by recitals or allegations in the pleadings has no application. The village of Le Roy, as distinguished from its agents and officials, the water and light commissioners, and its trustees, is the real party in interest in this proceeding, which for the purposes of this motion, at any rate, is essentially the same proceeding that was instituted by the water and light commissioners; that is to say, it is the corporate rights that are involved, as distinguished from those of either the water and light commissioners or the trustees. They are each but agencies or instrumentalities used by the corporation for the transaction of its business, and, so far as this proceeding is concerned, the functions of the water and light commissioners ceased when the judgment of November 18, 1897, was entered; and thereupon the right to take steps to correct or set aside that judgment, if such a

It is claimed by the gaslight company that the decree herein has been satisfied in part, and that, therefore, it cannot be set aside or vacated. The decree has certainly not been satisfied. It is a decree for the payment of money upon the performance of certain acts by the gaslight company, none of which have been performed, nor has any part of the judgment been paid. The possession of the property sought to be condemned has been delivered by the company, and accepted by the village; but if the village had no right or power to acquire the property in the absence of a popular vote sanctioning and authorizing it, as it had not, then the title thus acquired does not furnish the basis of a consideration for the bonds to be issued, contemplated by the statute, and the judgment ought not to stand. The case is not within the doctrine of In re Woolsey, 95 N. Y. 135 , and other cases which hold that constitutional and statutory provisions may be waived by persons for whose benefit they exist. The case at bar does involve public policy, and is not exclusively a matter of private right. See Mayor, etc., of New York v. Manhattan Ry. Co., 143 N. Y. 1 , 37 N. E. 494 ; In re Cooper, 93 N. Y. 507 . If it were competent for the constituted authorities of a municipality to waive a popular vote enjoined by the constitution or by statute, the only thing necessary to be done to render such provisions nugatory and meaningless would be to elect to office persons who, for one consideration or another, might find it expedient to waive a compliance with them.

The court had not jurisdiction to pronounce the judgment in question, for the reason that the popular vote required by the statute was essential to confer it. As has been already said, it was a condition precedent to the right to prosecute the proceedings for condemnation, and that fact distinguishes this from the case of Hunt v. Hunt, 72 N. Y. 217 , and others in line .with it, involving the ques

An order may be entered in accordance with this opinion. If parties fail to agree upon its terms, it may be settled by the court on two days’ notice.