Summary
In People ex rel. Hetfield v. Trustees (70 N.Y. 28) the statute provided that notice of a special election for the purpose of voting upon the question of issuing bonds of the village should be published "for at least two weeks previous to the time appointed for such election;" the notice was in fact printed during the two weeks prior to the election, but there was not a full interval of two weeks.
Summary of this case from Matter of McCabe v. VoorhisOpinion
Argued, May 22, 1877
Decided, May 29, 1877
Wm. A. Beach, for the appellant. Francis Kernan, for the respondent.
The mandamus was properly refused for several reasons:
First. The power of the commissioners appointed by the act, chapter 953 of the Laws of 1867, to borrow money and to issue the bonds of the village of Fort Edward, in aid of the construction of the railroad mentioned in the act, was made by the fifth section to depend upon the affirmative vote of the taxable electors of the village, at an election to be held at a time and place to be designated by the board of trustees, notice of which, the section declares, "shall be published in a public newspaper of the village for at least two weeks previous to the time appointed for such election."
The act, chapter 317 of the Laws of 1868, amended the act chapter 32 of the Laws of the same year, which amended the act of 1867, by providing that the trustees might, at any time previous to June 1, 1868, call a meeting of the taxable inhabitants of the village, by publishing the same in all the newspapers published in the village, to decide the question as to raising a sum not exceeding $20,000 for the purposes of the act. The third section of the act, by express language, applies to the village of Fort Edward all the provisions of the act of 1867 not inconsistent with the amended act. The provision in the act of 1867 prescribing the time for which the notice of the election should be published was not inconsistent with the act of 1868. The latter act provided for giving greater publicity to the proceeding by requiring that the notice should be published in all the newspapers in the village. It did not affect the requirement of the former act that notice should be published "for at least two weeks" prior to the election. The election was held May 5, 1868, and the first publication of the notice was April 24, 1868. This was not a compliance with the statute. The plain meaning is that at least two weeks should intervene between the publication of the notice and the election. The statute is not satisfied by a publication in two successive weeks before the election, and the construction which has been given to statutes requiring notice of legal proceedings to be published a certain number of weeks successively before a sale or other event is not applicable to the statute in question. ( Olcott v. Robinson, 21 N.Y., 150.) There was, therefore, no valid election under the act.
Second. Assuming that due notice of the election was published, the requisite vote was not given in favor of the project. The first section of the act of 1868 declares that the "taxable inhabitants of said village may at such meeting, by a majority vote, decide to raise a sum not exceeding $20,000 for the purposes provided in the act." The second section provides that "in case a majority of said taxable inhabitants shall vote to raise such sum for said purpose" the trustees shall be commissioners, etc. It is admitted that the voters who voted at the election in favor of raising the money did not constitute a majority of the taxable inhabitants of the village. The statute did not authorize a minority of the taxpayers to determine the question whether a debt should be created under the act. Before this could be done there must have been an affirmative vote of a majority of the taxable inhabitants. The law is plain and any other construction would involve a departure from the uniform principle governing our legislation on the subject of municipal aid to railroad enterprizes, that a majority of the taxpayers must have consented thereto.
Third. The constitutional amendment which took effect January 1, 1875, providing that "no county, town or village shall hereafter give any money or property, or loan its money or credit to or in aid of any individual, association or corporation," is a decisive answer to the application for a mandamus. There was no contract existing between the Glens Falls and Fort Edward Railroad Company and the village of Fort Edward, that the latter should give or advance to the company any sum whatever. If when the constitutional amendment took effect the vote had been duly taken and the requisite vote of the majority of the taxable inhabitants to the raising of the money had been secured, the constitutional amendment prevented further action, and rendered the prior proceedings null and void. The authority to create the debt was taken away, and no power existed to borrow money or to issue the bonds of the village, for the purposes of the act of 1867. This question has been recently considered and decided in this court in the case of The Buffalo Jamestown R.R. Co. v. Weeks ( 69 N.Y., 491).
For these reasons, without considering other questions raised, the order should be affirmed.
All concur.
Order affirmed.