Opinion
Submitted June 23, 1899
Decided October 3, 1899
C.L. Andrus for appellant. Brinnier Newcomb for respondents.
The question presented by this appeal is whether the second election to determine whether a village is to be incorporated, held under the act for the incorporation of villages after the first election has been declared illegal on appeal, may be had upon the order of the county judge and a notice signed by the inspectors of the previous election, without a notice signed by twenty assessable electors as is required for the first election?
The object of the first title of the Village Incorporation Act is to provide a simple method of incorporating villages, with an equally simple method of testing the legality of the proceedings and a prompt remedy for any mistake rendering those proceedings invalid. (L. 1870, ch. 291; L. 1871, chs. 688, 870; L. 1873, ch. 92; L. 1891, ch. 116; L. 1892, ch. 194.) The basis of the right to incorporate is the residence of the number of people required for a village within the proposed territory, and the method of incorporation is through a vote of the electors residing within that territory. (Id. § 1.) The election is held pursuant to a notice, which must be signed by at least twenty electors liable to assessment for village expenses, and published or posted at least thirty days before the election takes place. (§ 7.) If a majority votes in favor of incorporation and no appeal to the county judge is taken within the period allowed for that purpose, or if "an appeal is taken and decided favorably to the legality of the election," the territory becomes an incorporated village from the time when the certificate of the inspectors of election is filed with the county clerk. If an appeal is taken and the election is decided to have been illegal, the county judge is required "to make an order * * * directing another election to be held to determine the question of the incorporation of such territory," and file the same with the county clerk. (§ 13.) "The election so ordered," as the statute provides, "shall be held on notice of such election, signed by some one or more of the" inspectors at the first election, "published or posted * * * for at least fifteen days before the election." (§ 13.) If the second election results in the same way as the first, the incorporation is complete upon the filing of the certificate of the inspectors to that effect, and such certificate is made "final and conclusive proof of the incorporation of such village and the regularity thereof, in all courts and places, and in all actions and proceedings." (Title 8, § 2.) If the result of either election is against the plan to incorporate, "then such territory shall not be an incorporated village, and in that case no second election can be held under" the "act within two years from the time the first of said elections was held." (Title 1, § 16.)
In 1895 certain persons residing in the town of Shandaken, county of Ulster, desiring to incorporate a village under the provisions of said act, took all the steps necessary to hold a valid election for that purpose, except that the notice required to be signed by twenty electors liable to assessment, was signed by but fourteen electors thus liable, and by ten others who did not have that qualification. At the election there was a majority of thirty-four in favor of incorporation, but upon appeal the election was adjudged invalid for the defect already mentioned, whereupon the county judge ordered that another election be held to determine the question. Notice of the second election was thereupon given and no question is raised in relation to it, except that the paper was signed by the inspectors of the previous election and not by twenty duly qualified electors. The result of the second election was a majority of thirty-seven in favor of incorporation, and after the filing of the certificate required by law, "the village of Pine Hill" was treated as duly incorporated. An election for village officers was held on the 10th of June, 1895, the persons elected, qualified, and carried on the village government, and, among other things, made an assessment for the ordinary expenditures and collected the same by warrant. On the 7th of April, 1896, another village election was held and the defendants were elected president, trustees, treasurer, etc. These officers, when this action was commenced on the 27th of October, 1896, were engaged in administering the government of the village and discharging their respective duties. It was alleged in the complaint that an assessment for the ordinary expenditures of the village had been made for the year 1896, a tax roll delivered to the collector with a warrant signed by the president commanding him to collect the taxes, and that by virtue thereof he had collected some by voluntary payment and some by levy and sale. The object of the action was to secure an adjudication that the territory in question was not incorporated as a village and to restrain the defendants from acting as officers thereof. At the trial, the complaint, which alleged the foregoing facts, among others, was dismissed upon the ground that it failed to set forth any cause of action against the defendants. After affirmance by the Appellate Division, the plaintiff appealed to this court.
The incorporation of a village under the statute in question rests upon two main facts; first, the existence of the requisite population, and, second, the vote by a majority of electors in favor of incorporation. The method of ascertaining these facts, as prescribed by statute, must be substantially complied with in order to invest the inhabitants of the proposed territory with the powers of a village corporation. No question is raised in this case as to the first of these facts, or the method pursued in ascertaining it. As to the second, while it is conceded that the electors have twice voted in favor of incorporation, the last time by a majority exceeding in number the votes in opposition, still it is claimed that no corporation was formed, because the notice for the second election was not signed by twenty assessable electors. We thus reach the question whether the statute requires the notice for the second election to be signed simply by the inspectors or by twenty qualified electors with or without the inspectors?
The theory of the statute, as we understand it, is that no election shall be held without substantial evidence that one is necessary. The legislature evidently intended that the proposition to incorporate should not be submitted to popular vote unless it was vouched for by "some responsible authority." It, therefore, provided that if twenty substantial citizens gave notice of an election, one should be held. If the result was unfavorable to incorporation, the scheme was quieted for two years, but if it was favorable, the election, even if so irregular as to be set aside on appeal, was regarded by the legislature as sufficient evidence of popular desire, not simply to warrant, but to require another election. Accordingly it expressly commanded the county judge, upon rendering his decision that the first election was illegal, to order a second and provided upon what notice it was to be held. It did not say that twenty assessable electors should sign it, but directed that it should be "signed by some one or more of the persons designated as inspectors of election at the previous election." There is no difference in the substance of the two notices, but while the first must be published or posted for thirty days before the election, the second need be published or posted but fifteen days. We think that the legislature, in requiring the county judge to order a second election, and in providing not only how the notice thereof should be signed, but also that the election might be held fifteen days after it was posted, intended that the procedure specified for the second election should take the place of that provided for the first. The careful provision made for effective notice, which is the object of the statute, leaves no room for adding something else by implication. If the legislature had intended that twenty electors should sign the second notice, we see no reason why it should not have said so, especially in a statute so complete in details as the one before us.
The contention of the appellant that the procedure is continuous, and as it was not initiated as required, all subsequent proceedings were void, is not well founded. The design of the legislature, after the primary fact of sufficient population was established by a special census, was to authorize an election to ascertain the wishes of a majority of the people. The first movement toward incorporation is unofficial in character, for it springs from the people acting without the aid of any public officer. The holding of the first election, however, is an official act, for it is under the supervision of certain town officers, acting as inspectors, and if the result is favorable to incorporation thenceforward all proceedings are taken through public officers. The law then takes charge of the movement and carries it forward with the sole object of ascertaining in an orderly way whether a majority of those interested desire to incorporate. The aid of twenty electors is no longer required to support the movement, for it rests on a vote of the people. The legislature had the power to direct a second election for such reason and on such notice as was satisfactory to it, and a majority vote, followed by the order of the county judge, was evidently regarded as a sufficient reason, and a notice signed by the inspectors as a sufficient notice. It had absolute control of the subject, and could direct that the second election should be held upon the same notice as the first, or upon an entirely different notice. Its power to pass general laws providing for the incorporation of villages clothed it with absolute discretion as to whether, how, and upon what notice an election should be held. (Const. art. 3, § 18.) The fact that no appeal is allowed from the second election, and that the certificate of the inspectors is final and conclusive proof of the incorporation and of the regularity thereof in all courts and places and in all actions and proceedings, shows an intention that the two elections, resulting in the same way, should absolutely end the controversy. (Id. title 1, § 15; title 8, § 2.) This is a wise provision, for it prevents the confusion and danger which might result if the question of incorporation were left open to attack years after the village had been in existence for all practical purposes.
We think that the village of Pine Hill was duly incorporated, and that the judgment appealed from should be affirmed, with costs.
All concur, except PARKER, Ch. J., not sitting.
Judgment affirmed.